Villaplana v Kane Assoc. Family Ltd. Partnership

[*1] Villaplana v Kane Assoc. Family Ltd. Partnership 2007 NY Slip Op 52187(U) [17 Misc 3d 1129(A)] Decided on November 13, 2007 Supreme Court, New York County Edmead, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 13, 2007
Supreme Court, New York County

Irma Villaplana and Armando Villaplana, Plaintiffs,

against

Kane Associates Family Limited Partnership and Diekmann Bea Products Limited Partnership D/b/a McDonalds, Defendants.



112217/05

Carol R. Edmead, J.

Defendant Diekmann Bea Products Limited Partnership d/b/a McDonald's ("Diekmann"), moves and defendant Kane Associates Family Limited Partnership ("Kane") cross moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint of plaintiffs Irma Villaplana ("plaintiff") and Armando Villaplana (collectively "plaintiffs"). Each moving defendant bases its argument for summary judgment on the same premise: the purported uneven condition that plaintiff alleges caused her to fall is trivial as a matter of law and is not sufficient to establish that the condition was either dangerous or defective.

This is an action for personal injuries allegedly sustained by plaintiff when she tripped and fell on December 8, 2003 between 7:30 a.m. and 8:00 a.m. on the sidewalk outside of a McDonald's restaurant operated by defendant Diekmann at 1188 6th Avenue, New York, New York (the "accident site").

Defendant Kane is the owner of the real property located at the accident site (the "subject premises").

Plaintiff's Deposition Testimony

The weather conditions on the date of plaintiff's accident were: cold, no precipitation, no ice, no snow on the ground, no rain, but the sky was "grayish." (Pl.'s dep. pp. 23-24). Plaintiff traversed the accident site walking to and from work, twice a day every day for three years prior to the date of her accident. (Pl.'s dep. p. 24). She noticed the sidewalk differential at the site of her accident over the period of time she walked back and forth to work. (Pl.'s dep. p. 24) Immediately to plaintiff's right - 5 to 10 feet - there was not room to go around the accident site. (Pl.'s dep. p. 34) There was nothing obstructing plaintiff from avoiding the accident site by going [*2]to her left. "Well, to the left-hand side the doors open and that sidewalk, it's not flush, it's not the first the first square of the sidewalk is like at an incline so you wouldn't walk that way and to my right well my husband was immediately to my right and then there's the waste paper basket, the garbage can is on that side so basically no one ever walks on that street." (Pl.'s dep. p. 36)

There was no ice or snow. (Pl.'s dep. p. 38) The length of the uneven sidewalk was about 14 inches and the height was "a bit above a half an inch." (Pl.'s dep. pp. 39-40)The sidewalk was not crowded. (Pl.'s dep. p. 44) The ground was wet from McDonald's hosing down the sidewalk but, according to plaintiff: "The ground was wet but it didn't cause me to fall." (Pl.'s dep. p. 166)

The presence of the garbage receptacle funnels or pushes people into the center of the sidewalk and makes it necessary to walk in the middle of the sidewalk. (Pl's dep. pp. 173-74)

Diekmann's Contentions

It is undisputed that the height differential between sidewalk flags at the spot that plaintiff identified as the incident location was approximately one half (½) inch. A one half inch height differential between sidewalk flags is significantly smaller than or equal to height differentials that have been deemed by the overwhelming consensus of reported First Department cases as de minimus. As such, the purported uneven condition that plaintiff alleges caused her to fall is trivial as a matter of law and is not sufficient to establish that the condition was either dangerous or defective.

At her deposition, plaintiff identified certain photographs of the condition upon which she tripped. These photographs show that the height differential between the subject sidewalk flags at the spot where plaintiff allegedly fell was approximately one half (½) inch. Plaintiff specifically testified that she recognized these photographs as fairly and accurately depicting the incident scene as of the date of her injury. In fact, one of the photographs that plaintiff identified depicts the incident location with a ruler next to it. The measurement on the ruler shows the height differential between the sidewalk flags to be approximately one-half (½) inch.

Plaintiff further testified in her deposition that the weather on the date of the accident was cloudy and cold with no precipitation; that there was nothing obstructing her from walking to her left to avoid the accident site; the sidewalk was not crowded; and plaintiff first noticed the unevenness of the sidewalk flags as early as 2000, and walked on this block twice a day for more than three years prior to her fall.

Further, the photographs of the condition that plaintiff identifies as having caused her fall do no show any irregularities regarding the width or depth of the condition and the plaintiff did not cite any other conditions, such as poor lighting, ice, wetness or something else that may have contributed to her fall.

Plaintiff's only complaint is that the sidewalk flags differential was approximately one half (½) inch.

A trivial defect on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub toes, or trip on a raised projection, may not be [*3]actionable.

There is also no evidence indicating that the slight height differential posed a significant hazard by reason of its location or adverse weather or lighting conditions. Plaintiff's deposition testimony establishes that there was no adverse weather conditions, no snow or ice on the ground and there was sufficient lighting on the street. Moreover, plaintiff testified that there was nothing obstructing her from walking to her left to avoid the accident site.

Kane's Contentions

Pursuant to a Lease dated December 29, 1994, co-defendant Diekmann (as the assignee of the McDonald's Corporation) operates a McDonald's restaurant at the subject premises. By virtue of the Lease of the Premises, the lessee (i.e., Diekmann) had a non-delegable duty to maintain and repair the sidewalk in front of the subject premises.

Based on the photographs of the sidewalk identified by the plaintiff herself as the cause of the accident, the Kane defendant joins in the motion by Diekmann for summary judgment.

In opposition to a previously made and withdrawn motion for summary judgment, plaintiffs' counsel conceded that the "defect" consists of a "height differential" of "no less than one-half (½) inch." Plaintiff's counsel also apparently conceded that plaintiffs own photographs evidenced the trivial nature of any defect in the sidewalk. But, he added that even a trivial defect may constitute a snare or trap.

Here, no expert opinion has been produced to substantiate that there was any negligence in the condition or maintenance of the sidewalk.

Plaintiff's Opposition

In sum, summary judgment should be denied because: (1) Diekmann had special use of the sidewalk; (2) Diekmann had both actual and constructive notice of the defect in the sidewalk; (3) the failure to repair the sidewalk constitutes evidence of negligence; (4) The Administrative Code denominates the defect as "substantial"; and (5) the Administrative Code trumps the claim of trivial defect.

The subject lease between the co-defendants made reference to a 1990 violation stemming from a condition existing on the sidewalk prior to the time of plaintiff's accident. By the terms of the lease, the sidewalk was to be repaired by Diekmann. To date, defendant has not addressed whether said sidewalk violation was ever repaired and failed to address same in its motion. Certified records of the City of New York indicate said violation still exists and was never corrected or addressed. Failure to repair a sidewalk after having been provided notice of same is a violation of New York City Administrative Code 7-210 [Local Law 49(2003)] and 19-152(a)(4). It is well settled that a violation of the NYC Admin. Code is some evidence of negligence. An uncorrected violation of record relating to the sidewalk presents an issue of fact, sufficient to require denial of the motion for summary judgment.

Diekmann made special use of the sidewalk by placing a garbage receptacle on the sidewalk. Plaintiff identified the receptacle, McDonald's open door and an incline in the sidewalk directly adjacent to McDonald's as factors that funneled or pushed people into the center of the sidewalk and into the direction of the raised flag. Notice is not required where a pedestrian is forced to walk in the area of a defect based on an object placed on the sidewalk by a defendant. Diekmann's special use of the sidewalk obviates the need for notice.

And, special use is not limited to the property owner, but is also imparted to the lessee. [*4]

The defect is not de minimus but in fact significant. The NYC Admin. Code requires a substantial defect in a sidewalk be repaired if the vertical grade differential between adjacent sidewalk flags is greater than or equal to one half inch. Based upon the photographs alone, the Admin. Code denominates the subject defect in the sidewalk as a "substantial defect," and mandates the repair contemplated and required by the violation issued in 1990 and the lease entered into by Diekmann.

Even assuming that the court finds the defect to be de minimus, cases have held that even a trivial defect may constitute a snare or trap.

Diekmann's Reply

Plaintiff fails to provide an expert affidavit establishing that the condition upon which she tripped and fell exhibited any characteristics which render it a "trap" or "snare" as contemplated by controlling case law, or to establish the extent or precise measurement of any claimed height elevation between the sidewalk flags. As such, plaintiff concedes that, at most, the height differential between the sidewalk flags at the accident site is a bit over one half (½) inch. Plaintiff lacks any credible evidence corroborating these estimations and the measurements could be even smaller than approximately one half (½) inch that is visible in the photograph.

Existing and controlling case law supports dismissal of plaintiff's complaint on the ground that the defect is trivial.

Further, the existence of a vague, general sidewalk violation from 1990 which does not identify any specific defect is not evidence of negligence and does not establish notice of a defect.

If the height elevation between the sidewalk flags in front of Diekmann's premises is found to be trivial, it is irrelevant whether Diekmann had a special use for the sidewalk. It is also immaterial whether such special use diverted plaintiff toward the purported defect. Accordingly, the issue of "special use" is inapposite to the arguments raised in summary judgment by Diekmann and do not create an issue of fact precluding summary judgment dismissing plaintiff's complaint.

Kane's Reply

Controlling First Department case law dictates that summary judgment is warranted where a sidewalk defect is "trivial."

And, plaintiff fails to substantiate that the alleged sidewalk defect was a "trap" or a "snare" through an expert affidavit.

Based on the above, summary judgment is warranted.

Analysis

Plaintiff's testimony at deposition was that the defect was "[a] bit above a half an inch." Photographs produced by plaintiff of the sidewalk where plaintiff fell show the defect to be one half ( ½ ) inch. The issue before the court on the motion and cross motion for summary judgment is whether a one half ( ½) inch differential in the sidewalk flags is de minimus or significant, and if de minimus, what, if anything, will still defeat summary judgment.

It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR § 3212[b]), sufficient to warrant the court as a matter of law to direct judgment in his or her favor (Bush v St. Claire's Hosp., 82 NY2d 738, 739 [1993]; Winegrad v New York Univ. Med. Ctr., 64 [*5]NY2d 851, 853 [1985]; Wright v National Amusements, Inc., 2003 NY Slip Op. 51390(U) [Sup Ct New York County, Oct. 21, 2003]). This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Silverman v Perlbinder, 307 AD2d 230, 762 NYS2d 386 [1st Dept 2003]; Thomas v Holzberg, 300 AD2d 10, 11, 751 NYS2d 433, 434 [1st Dept 2002] [defendant not entitled to summary judgment where he failed to produce admissible evidence demonstrating that no triable issue of fact exists as to whether plaintiff would have been successful in the underlying negligence action]). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions" (CPLR § 3212[b]). A party can prove a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra ; Prudential Securities Inc. v Rovello, 262 AD2d 172[1st Dept 1999]).

Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR §3212[b]). Thus, where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so (Vermette v Kenworth Truck Co., 68 NY2d 714, 717 [1986]; Zuckerman v City of New York, supra , 49 NY2d at 560, 562; Forrest v Jewish Guild for the Blind, 309 AD2d 546, 765 NYS2d 326 [1st Dept 2003]). Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist (Zuckerman, supra at 562). Opponent "must assemble and lay bare [its] affirmative proof to demonstrate that genuine issues of fact exist" and "the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief" (Kornfeld v NRX Technologies, Inc., 93 AD2d 772 [1st Dept 1983], affd, 62 NY2d 686 [1984]).

The Court of Appeals addressed the issue of "trivial defect" in Trincere v County of Suffolk, 90 NY2d 976 (1997). In Trincere, the Court found that there is no "minimal dimension test" or per se rule that a defect must be of a certain minimum height or depth in order to be actionable. The Court found, however, that dismissal of plaintiff's claim was proper after the lower court's examination of all the facts and circumstances presented, including the dimension of the defect at issue. The Court continued in Trincere and stated that there is no rule that liability, in a case involving minor defects in the pavement, "turns upon whether the hole or depression, causing the pedestrian to fall, is four inchesor any other number of inchesin depth" (Loughran v City of New York, 298 NY 320, 321-322; Wilson v Jaybro Realty & Dev. Co., 289 NY 410, 412). Instead, 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" (Guerrieri v Summa, 193 AD2d 647 [citations omitted]). Of course, in some instances, the trivial nature of the defect may loom larger than another element. Not every injury allegedly caused by an elevated brick or slab need be [*6]submitted to a jury (see, e.g., Hecht v City of New York, 60 NY2d 57, 61 [claim involving trivial gap between two flagstones of the sidewalk was properly dismissed]). However, a mechanistic disposition of a case based exclusively on the dimension of the sidewalk defect is unacceptable. After examination of the facts presented, including the width, depth, elevation, irregularity andappearance of the defect along with the "time, place and circumstance" of the injury (Caldwell v Village of Is. Park, 304 NY 268, 274), The Court found that the lower court correctly concluded that no issue of fact was presented.

The Sidewalk Law of 2003, Local Law number 49, New York City Code § 7-210, recites in pertinent part that "a. It shall be the duty of the owner of real property abutting any sidewalk ... to maintain such sidewalk in a reasonably safe condition. b. ... the owner of real property abutting any sidewalk ... shall be liable for any injury to property or personal injury ... proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition." New York Code § 19-152 imposes a duty upon the abutting property owner to repair, re-pave or reconstruct the sidewalk flags abutting the property where, inter alia, there exists "4. a trip hazard, where the vertical grade differential between adjacent sidewalk flags is greater than or equal to one half inch ..." (emphasis supplied)

In the instant case, the movants argue that the differential is one half (½) inch. Based on the plain reading of the Code, the existing sidewalk flags differential in the instant case falls within the prescribed range requiring remediation, but is it also "trivial" as a matter of law. See e.g. Morris v Greenburgh Central School District, 5 AD3d 567, 774 NYS2d 74 (2d Dept.2004).

The First Department addressed the issue of height differential in Martin v Lafayette Morrison Housing Corp., 819 NYS2d 249, 250 (1st Dept 2006). In Martin, the First Department found that defendant established that the claimed defect which allegedly caused plaintiff to trip and fall was merely a slight height differential of approximately one-half inch between the rubber surface of the playground and the adjoining cement walkway, which did not constitute a trap or snare. Neither surface was broken, cracked or otherwise defective, and they were of contrasting colors. This minor height differential alone is insufficient to establish the existence of a dangerous or defective condition for which the property owner could be held liable ( see Morales v Riverbay Corp., 226 AD2d 271, 641 NYS2d 276 [1996] ). The First Department further found that plaintiff's submissions failed to establish the existence of issues of fact regarding defendant's possible liability for plaintiff's fall.

More recently, the First Department revisited this issue in the case of Jacobson v Krumholz, 41 AD3d 128 (1st Dept. 2007). In Jaacobson, plaintiff sought damages for personal injuries allegedly resulting from a trip and fall on the border of a parking lot surface and the adjoining sidewalk. The First Department here found that there were triable issues of fact as to whether the defect was trivial and as to whether defendant had constructive notice. The photographs depicted a lengthy irregular depression with a jagged edge (see Argenio v Metropolitan Transp. Auth., 277 AD2d 165, 166 [2000]), and, although there were no adverse weather or lighting conditions at the time of plaintiff's accident, and the area was not crowded, plaintiff testified at her deposition that she was concerned with vehicles entering and exiting the lot and therefore could not have been expected to be looking downward (see George v New York City Tr. Auth., 306 AD2d 160 [2003]). The court further found that the store manager's testimony [*7]regarding his lack of actual notice notwithstanding, plaintiff's testimony that the defect was of long duration, as well as the photographs, support an inference that the complained-of condition was not suddenly created and raise a triable issue as to whether defendant could have obtained timely knowledge of it by the exercise of ordinary care (see Denyssenko v Plaza Realty Servs., Inc., 8 AD3d 207 [2004]).

In Morris, in support of its motion, the School District relied on the deposition testimony of one of its custodians to the effect that the concrete slab was raised only one inch. The School District also relied on photographs acknowledged by the injured plaintiff as accurately reflecting the condition of the walkway at the time of the accident. The Second Department held that the School District thereby established its entitlement to summary judgment by demonstrating as a matter of law that the alleged defect, which did not have any of the characteristics of a trap or snare, was too trivial to be actionable (see Trincere v County of Suffolk, 90 NY2d 976 [1997]; Neumann v Senior Citizens Ctr., 273 AD2d 452 [2000]; Marinaccio v LeChambord Rest., 246 AD2d 514 [1998]). The Second Department further found that in opposition, the plaintiffs failed to raise a triable issue of fact. And, under the circumstances, the Supreme Court properly granted the School District's motion for summary judgment. In view of that determination, the Second Department held that the plaintiffs' remaining contention need not be reached (cf. Tulovic v Chase Manhattan Bank, 309 AD2d 923 [2003]; Cupo v Karfunkel, 1 AD3d 48 [2003]).

The instant case is distinguishable from Tineo v Parkchester, 304 AD2d 383 (1st Dept. 2003) where plaintiff described the defect as broken and uneven asphalt pavement in bad condition. Plaintiff's expert, who inspected the area of the fall, described the condition as a "3/4 inch deep depression, nominally two feet long by two feet wide in the asphalt pavement, where an abrupt elevation difference remains around the perimeter of the depression as a tripping hazard." The expert concluded that the "patch-repaired walkway surface was destabilizing underfoot because it was wide-cracked, depressed, sunken, and uneven."

No such specificity of detail beyond the one half (½) inch height differential is presented in the instant case. Nor do the photographs presented herein evidence a "trap" as in the case of Herrera v City of New York, 262 AD2d 118 (1st Dept. 1990) wherein the photographs established not only an elevation differential of three-quarters to one inch (downward, in the direction plaintiff was walking), but also a gap of up to one and a half inches in width.

In the instant case, there is no evidence to establish the existence of any trap-like characteristics at the accident site other than the approximate one half (½) inch differential between the sidewalk flags. Plaintiff does not allege that the sidewalk at the accident site was "jagged," or that the width, length or depth of the sidewalk at the accident site factored into her accident.

In fact, plaintiff expressly testified that the wetness of the sidewalk from the hosing by defendant Diekmann was not a factor in her accident: "The ground was wet but it didn't cause me to fall." (Pl.'s dep. p. 166) Also, unlike the plaintiff in Jacobson, plaintiff herein in her deposition testimony does not attribute the location of the garbage receptacle or the slant of the entranceway to the restaurant as factors related to or causing her accident. Plaintiff does not argue that these circumstances made the defect difficult to detect thus presenting a situation in which an assessment of the hazard in view of 'the peculiar facts and circumstances' is appropriate ..." (Argenio v Metropolitan Transp. Auth., 277 AD2d 165, 166 (1st Dept. 2000)). In the instant [*8]case, there is no expert affidavit as in the case of Glickman v City of New York, 297 AD2d 220 (1st Dept. 2002), opining that the location of the dip, where a person leaving a busy parking area might be focused more on traffic rather than looking at the ground, might have increased the hazard, especially if the dip was hard to see. Nor is there an argument made in the instant case that the presence of an edge posed a tripping hazard rendering the defect nontrivial (Nin v Bernard, 257 AD2d 417, 417-418 (1st Dept. 1999)).

In conclusion, plaintiff has not come forward with any trap or snare conditions at the accident site other than the one half (½) inch differential that factored into the causing of her accident.

Conclusion

Based on the foregoing, it is hereby

ORDERED that the motion of defendant Diekmann Bea Products Limited Partnership d/b/a McDonald's and the cross motion of defendant Kane Associates Family Limited Partnership for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint of plaintiffs Irma Villaplana and Armando Villaplana, are granted, and the complaint is dismissed. It is further

ORDERED that counsel for defendant Diekmann shall serve a copy of this order with notice of entry within twenty days of entry on all counsel.

This constitutes the decision and order of this court.

Dated:November 13, 2007

_____________________________

Carol Robinson Edmead, J.S.C.