LaBruna v City of New York

[*1] LaBruna v City of New York 2010 NY Slip Op 50204(U) [26 Misc 3d 1221(A)] Decided on January 4, 2010 Supreme Court, New York County Scarpulla, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 11, 2010; it will not be published in the printed Official Reports.

Decided on January 4, 2010
Supreme Court, New York County

Rita LaBruna, Plaintiff,

against

The City of New York, Association to Benefit Children, Inc., Association to Benefit Children Cassidy House, and 425 East 86 Apartment Corporation, Defendants.



109784/2005



For Plaintiff:

Weitz, Kleinick & Weitz, LLP

233 Broadway

New York, NY 10279

For Defendant City of New York:

Michael A. Cardozo,

Corporation Counsel

100 Church Street, 4th Floor

New York, NY 10007

For Defendants Association to Benefit Children, Inc., and Association to Benefit Children Cassidy House:

Robin, Harris, King & Fodera

One Battery Park Plaza, 30th Floor

New York, NY 10004-1437

For Defendant 425 East 86 Apartment Corporation:

Bates & Baer

60 East 42nd Street, Suite 1524

New York, NY 10165

Saliann Scarpulla, J.

In this action to recover damages for personal injuries, defendants Association to Benefit Children, Inc. and Association to Benefit Children Cassidy House (the "Association defendants") move for summary judgment pursuant to CPLR 3212.

This action arises from injuries allegedly sustained by plaintiff Rita LaBruna ("LaBruna") on May 12, 2004. LaBruna alleges that on that date, at around 11:00p.m. she was walking from Arturo's Restaurant, located on York Avenue and 85th Street, to her home [*2]at 401 East 86th Street, New York, New York. While walking on East 86th Street, she tripped and fell on the sidewalk abutting 419 East 86th Street, the location of the Association defendants, and 425 East 86th Street, the location of defendant 425 East 86 Apartment Corporation ("425 East 86").

At her deposition, LaBruna testified that she walked home alone on East 86th Street from York Avenue towards her home, with the buildings to her right. LaBruna testified that she was walking in the middle of the sidewalk approaching her building when she tripped and fell on a broken cement piece that was sticking up from, and attached to, the sidewalk.

LaBruna explained that after tripping, while lying on the sidewalk for approximately 15 minutes, she had the opportunity to observe the broken piece of cement which caused her to trip. She explained that it was very large, and stuck up from the sidewalk by about 1 ½ — 2 inches. Later in her deposition, LaBruna also described what caused her to fall as a "break" in the cement, and a raised but not broken-off portion of the sidewalk.

In her summons and verified complaint, dated July 1, 2005, LaBruna alleges negligence against all defendants. In their answer, the Association defendants deny all material allegations of the complaint, and assert multiple affirmative defenses. The Association defendants also assert a cross-claim against co-defendants for indemnification. In its answer, 425 East 86 also denies all material allegations and asserts multiple affirmative defenses. 425 East 86 also asserts a cross-claim against co-defendants for indemnification.

The Association defendants now move for summary judgment pursuant to CPLR 3212 dismissing the complaint and all cross-claims. The Association defendants argue that they are not liable for LaBruna's alleged injuries because her fall was caused by the expansion joint in the sidewalk in front of 425 East 86's building, and not in front of the Association defendants' property. In the alterative, the Association defendants argue that the expansion joint is in compliance with New York City regulations.

In opposition, 425 East 86 argues that the Association defendants caused and created the defect in the sidewalk, and that the engineer's affidavit submitted by the Association defendants in support of their motion is conclusory and should be disregarded. Neither LaBruna nor defendant the City of New York submitted opposition to this motion.

Discussion

Summary judgment is an extraordinary remedy and is only appropriate where the movant has established that there is no question of fact on any issue which would require a trial. See Andre v. Pomeroy, 35 NY2d 361, 364 (1974). The court may grant summary judgment upon a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence sufficient to eliminate material issues of fact. CPLR 3212(b); Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986); Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). On a motion for summary judgment the testimony of the nonmoving party is accepted as true. O'Sullivan v. Presbyterian Hosp. in City of New York at Columbia Presbyterian Medical Center, 217 AD2d 98, 101 (1st Dep't 1995).

The Association defendants' motion turns on their assertion that LaBruna tripped on [*3]the expansion joint in the sidewalk in front of 425 East 86's building. In support of this contention, the Association defendants submitted affidavits and supporting documentation by an engineer, Vincent A. Ettari, P.E. ("Ettari"), who concluded that the expansion joint is located in front of the property owned by 425 East 86, and not in front of the property owned by the Association defendants. However the Association defendants have not shown that LaBruna tripped on the expansion joint.

In her complaint, LaBruna asserts that she tripped on the sidewalk in front of 419 East 86th Street and 425 East 86th Street. Neither the Association defendants nor 425 East 86 submitted LaBruna's notice of claim or Bill of Particulars, so the only other details of her fall come from her deposition testimony. Early in her deposition, LaBruna testified that she tripped on a portion of the sidewalk which was raised about 1 ½ to 2 inches. Later on, she was shown photographs of the area of sidewalk where her fall occurred, and asked to indicate on the photograph where she tripped. These photographs, however, were not included with the transcript of LaBruna's deposition submitted by the Association defendants in support of this motion.[FN1]

Based on the transcript of her deposition, LaBruna was not asked to circle or mark the photograph to indicate the precise location of her fall. When asked what the picture depicts, LaBruna replied that it showed where she fell, "[r]ight on that thing." When asked to describe "that thing," she explained it as "[t]hat break in the cement."[FN2] When asked a follow- up question, she said that the portion of the sidewalk where she tripped was "[n]ot broken, but raised."

In an affirmation in support of the Association defendant's motion, the Association's attorney asserts that the raised portion of the sidewalk which caused LaBruna to trip "was identified as the expansion joint." This assertion, however, is not supported by citation to any exhibit, document, transcript, photograph or any other evidence. A question as to the precise location of LaBruna's fall creates a question of fact. "Conflicting versions of the accident's location must be resolved by a jury." Macht v. J.S. Cinemas, Inc., 18 AD3d 1102, 1103 (3d Dep't 2005). See also Harris v. FJN Properties, LLC., 18 AD3d 1089, 1090 (3d Dep't 2005) (triable issues of fact exist where defendant and plaintiff maintain different locations of plaintiff's fall). The Association defendants fail to submit sufficient evidence on this motion to show, as a matter of law, that LaBruna tripped on the expansion joint. Therefore, the location of LaBruna's fall is to be resolved by the jury.

In accordance with the foregoing, it is [*4]

ORDERED that defendants Association to Benefit Children, Inc. and Association to Benefit Children Cassidy House's motion for summary judgment to dismiss plaintiff Rita LaBruna's complaint and all of the cross-claims against it is denied.

This constitutes the Decision and Order of the Court.

Dated:New York, New York

January 4, 2010

ENTER:

_____________________________

Saliann Scarpulla, J.S.C. Footnotes

Footnote 1: In opposition to the motion, 425 East 86 included black and white copies of photographs with "Exhibit" labels, but fail to indicate at which deposition or depositions these exhibits were utilized.

Footnote 2: Plaintiff's counsel then added "Indicating a vertical line running roughly in the middle of the photograph."