Munoz v City of New York

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Munoz v City of New York 2012 NY Slip Op 32064(U) August 3, 2012 Supreme Court, New York County Docket Number: 112972/2009 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. UED ON 81612012 [* 1] SUPREME COURT OF T TATE OF NEW YORK - NEW YORK COUNTY w =p Ac, w q - ' JAFFg B R s. J PRESENT: PART J. 5 Justice INDEX NO. Index Number : 112972/2009 MUNOZ, YVONNE MOTION DATE VB CITY OF NEW YORK Sequence Number : 001 SUMMARY JUDGMENT MOTION SEQ. NO. &nc. &+lY MOTION CAL. NO. 3 The following papers, numbered 1 to were read on this motion to/for PAPER$ NUMBERED Notice of Motion/ Order to Show Cause - Affldavlts - Exhibits ... I ? Answering Affidavits - Exhiblts ,3 Replying Affidavits Cross-Motion: 17 No Yes Upon the foregolng papers, It is ordered that this motion Dated: $?I 1, 3' 2 AUG 0 3 20E Check one: FINAL DISPOSITION Check if appropriate: 0 SUBMIT ORDER/JUDG. DO NOT POST Ti REFERENCE 0 SEXTLE ORDER /JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW Y O N : PART 5 Index No. 1 12972/09 YVONNE MUNOZ and EMIR MUNOZ, Argued: Motion seq. no.; Plaintiffs, 5/1/12 00 1 -against- DECISION & OEWER THE CITY OF NEW YORK, TWO COLUMBUS ASSOCIATES L.L.C., THE CHURCH OF ST. PAUL THE APOSTLE, NEW YORK CITY a M a THE CHURCH OF ST. PAUL THE APOSTLE and THE MISSIONARY SOCIETY OF ST. PAUL THE APOSTLE IN THE STATE OF NEW YORK, Defendants. ~~~ n BARBARA JAFFE, JSC: For plaintiffs: M r A. Bergam, Esq. ay Dinerman Bergam & Dinerman, LLP 170 Broadway, Stc. 410 New York, NY 10038 212-267-7575 For Church: Frank Raia, Esq. Rivkin Radler LLP 926 RXR Plaza Uniondale, NY 11556-0926 5 16-357-3000 By notice of motion dated November 23,201 1, defendant The Church of St. Paul the Apostle (Church) moves pursuant to CPLR 3212 for an order summarily dismissing the complaint against it. Plaintiffs oppose. On September 25, 2008, plaintiff Yvonne Munoz fell on the sidewalk in front of the Church at 60thStreet and Ninth Avenue in Manhattan when her foot became caught between two misleveled sidewalk flags. At a 50-h hearing held on February 27,2009, plaintiff testified that the defect was approximately an inch and half in height, and that her right foot became caught between the two flags. Photographs taken of the condition, which were authenticated by plaintiff, reflect a hole between the two flags consisting of eroded and uneven concrete, with a [* 3] depth and width of approximately one inch each. (Affirmation of Frank Raia, Esq., dated Nov. 23, 201 1 [Raia Aff.], Exh. E). The Church argues that based on plaintiff s testimony that the defect was an inch and a half in height and photographs of the condition, the defect was trivial and thus the Church cannot be held liable for her injuries. (Raia Aff.). Plaintiffs deny that the condition was trivial. (Affirmation of Mary A. Bergam, Esq., dated Mar. 21, 2012). In reply, the Church maintains that as the defect was no more than one inch deep, it was trivial, and that in any event, it was also open and obvious. (Reply Affirmation, dated Mar. 28,2012). It is well-settled that [tlhe owner of a public passageway may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection. (Morales v Riverbay Corp., 226 AD2d 27 I [ 1st Dept 19961). Whether a defect in a sidewalk is trivial does not depend solely on its dimensions. Rather, whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury. (Trincere v County of Sufsolk, 90 NY2d 976,977 [1997]; quoting Guerrieri v Summa, 193 AD2d 647 [2d Dept 19931). [Elven a trivial defect may constitute a snare or trap. (Argenio v Metro. Tramp. Auth., 277 AD2d 165, 166 [lSt Dept 20001; see Abreu v NYCHA, 61 AD3d 420,42 1 [ 1 Dept 20091 [lengthy irregularity in cement might have been capable of catching plaintiffs sandal]). Thus, sidewalk defects measuring one inch have been found to be not trivial. (Cuebus v Bufulo Motor Lodge/Best Value Inn, 55 AD3d 1361 [4thDept ZOOS] [sidewalk slabs with height 2 [* 4] differential of one inch insufficient to satisfy defendant's burden of showing defect was trivial]; Boxer v Metro. Tramp. Auth., 52 AD3d 447 [2d Dept ZOOS] [where plaintiff alleged defect was one inch and defendant alleged it was one-half inch, triable issues of fact existed]; Mishaan v Tobias, 32 AD3d 1000 [2d Dept 20061 lphotographs showing broken and cracked sidewalk and portion of sidewalk raised at least one inch raised triable issue]). Here, as the gap which caused plaintiff to fall allegedly had a height differential of approximately one inch, it was not trivial as a matter of law. (See N n v Bernard, 257 AD2d 417 i [ lutDept 19991 [precise dimensions of defect are not dispositive as to whether defect was trivial]). Moreover, the photographs show an irregular and sudden height differential in an otherwise smooth sidewalk. The Church has thus failed to establish, primafacie, that the defect was trivial and therefore not actionable. (See Fazio v Costco Wholesale Corp., 85 AD3d 443 [l" Dept 201 1J [plaintiffs testimony that concrete in depressed area was eroded, broken up and uneven created triable issue as to whether defect was trivial]; Tese-Milner v 30 E. 8ShSt. Co., 60 AD3d 458 [lSt Dept 20093 [photographs showing depressed area in sidewalk with rough and uneven surface did not unequivocally establish defect was trivial]; DeLaRosa v City ofNew York, 61 AD3d 813 [2d Dept 20091 [defendant failed to establish that defect consisting of height differential between two concrete slabs on sidewalk was trivial]; Cuebas, 55 AD3d at 1361 [same]; Herrera v City ofNew York,262 AD2d 120 [latDept 19991 [elevation differential of between 3/8th to one inch between sidewalk sections, sloping downward in direction plaintiff had been walking, with gap of up to one and 1/2 inches in width, not trivial]). Moreover, the Church's claim that the defect was open and obvious constitutes an affirmative defense that may be raised at trial, and not a ground upon which to dismiss the 3 [* 5] complaint. (See &rets@ v 85 Kenmare Realty Corp.,85 AD3d 89 [lStDept 201 11 [open and obvious nature of defect not fatal to plaintiff's negligence claim and relevant only to plaintiffs comparative fault]; Clark v AMF Bowling Ctrs., h c . , 83 AD3d 761 [2d Dept 201 11 [same]). Accordingly, it is hereby ORDERED, that defendant The Church of St. Paul the Apostle's motion for summary judgment is denied. ENTER: Barbard Jaffe,flC DATED: BAREkkA JAFFE August 3,20 2 New York, New York J.S.C. AUG 0 3 2Ul2 4

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