Lipsky v Manhattan Plaza, Inc.

Lipsky v Manhattan Plaza, Inc. 2013 NY Slip Op 00698 Decided on February 5, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 5, 2013
Friedman, J.P., DeGrasse, Richter, Abdus-Salaam, Feinman, JJ. 9171-
112702/08 9171A

[*1]Zachary Lipsky, Plaintiff-Respondent,

v

Manhattan Plaza, Inc., et al., Defendants-Appellants, Starbucks Corporation, Defendant.




McGaw, Alventosa & Zajac, Jericho (Ross P. Masler of
counsel), for appellants.
Kirsch, Gartenberg Howard LLP, New York (Peter D.
Valenzano of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered March 29, 2012 which, upon reargument, denied defendants-appellants' motion for summary judgment dismissing the complaint, unanimously reversed on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered February 10, 2012, which denied the aforementioned motion for summary judgment in the first instance, unanimously dismissed, without costs, as academic.

Here, the court denied the initial motion, without addressing the merits, because it was filed under an incorrect index number; however, upon subsequently purporting to deny reargument, the court proceeded to address the merits of the motion and adhered to its original determination. The order is thus appealable to this Court as of right (see Foley v City of New York, 43 AD3d 702, 703 [1st Dept 2007]; CPLR 5701[a][2][viii]).

On the merits, the photographs identified by plaintiff as depicting the location of the accident on the date of the accident show a trivial defect, which is not a trap or snare. The plaza pavers in the photographs are not broken or uneven, and the slight incline or slope of the surface by the drain is shallow and gently graded. Plaintiff testified that the lighting of the areas was adequate. Accordingly, summary judgment was appropriate (see Leon v Alcor Assoc., L.P., 96 AD3d 635 [1st Dept 2012]; Menendez v Dobra, 301 AD2d 453 [1st Dept 2003]).

Plaintiff's expert's opinion was insufficient to raise a triable issue of fact because it did [*2]not cite violations of any relevant Building Code provisions, and the expert did not inspect the scene until more than four years after the accident, during which time the condition of the area may have changed (see Alston v Zabar's & Co., Inc., 92 AD3d 553 [1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 5, 2013

CLERK