Selvaggio v Freedom Ave. Assoc.
Annotate this CaseDecided on July 9, 2010
Supreme Court, Richmond County
Christina Selvaggio, Plaintiff,
against
Freedom Avenue Associates, Hunter Ridge Co. and GATEWAY ARMS REALTY CORP, Defendants.
103248-08
Philip G. Minardo, J.
Defendants RICHMOND HEARTLANDS, INC., HUNTER RIDGE CO.,
and GATEWAY ARMS REALTY CORP. move for summary judgment dismissing the
complaint pursuant to CPLR § 3212.
Plaintiff CHRISTINA SELVAGGIO commenced this action to recover damages for
personal injuries sustained as a result of a slip and fall accident which occurred on or about June
3, 2008, on the sidewalk in front of the premises located at 131 Freedom Avenue, County of
Richmond. Plaintiff CHRISTINA SELVAGGIO contends that at approximately 8:30 a.m., while
she was out walking her dog, her dog pulled her into a foot-print shaped hole in the sidewalk.
Plaintiff argues that defendants RICHMOND HEARTLANDS, INC. and GATEWAY ARMS
REALTY CORP. were negligent in maintaining the sidewalk in question, that they had notice of
the alleged defect in the sidewalk, and that plaintiff's injuries are due to defendant's failure to
repair said defect.
As a result of the incident, plaintiff allegedly sustained, inter alia, a tear of
the Lisfranc ligament left foot, sprain of the Lisfranc ligament left foot, fracture of the cuboid
left foot and a sprain/strain of the left foot. Plaintiff also suffers from RSD on her left foot which
is allegedly permanent in nature. In addition, the plaintiff has learned that she is a candidate for
surgery on her foot.
In moving for summary judgment, defendants contend that the defect in the concrete
was so minor as to be trivial and that the defect did not have the necessary characteristics to be
actionable. In support of defendant's motion for summary judgment are photographs of the scene
of the accident and the affidavit of ANIL DIZAREVINCENT, the building superintendant for
Hunter Ridge Apartment Complex, which is managed by defendant Gateway Arms Realty. In his
affidavit, Mr. Dizarevincent describes the sidewalk defect as "only about three inches long, 2
½ inches wide, and much less than an inch deep." Similarly, MR. DIZAREVICENT states
in his affidavit that prior to this incident, he "walked the sidewalk 3-4 times a week" and he
"never saw the condition plaintiff claims to have fallen over."
In opposition, plaintiff CHRISTINA SELVAGGIO argues that the court should
consider a variety of factors in order to determine whether the defect is actionable. Plaintiff also
argues that she did not see a defect in the sidewalk because she was involuntarily pulled into the
hole by her dog, and that the defect is not a trivial defect. Furthermore, plaintiff testified in her
50-h hearing that the hole was "more than one inch deep" and probably about two (2) inches
deep.
[*2]
"It is well-established that the 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 or her toes, or trip over a raised projection." (Trionfero v. Vanderhorn, 6 AD3d
903, 903 [2004] quoting Guerrieri v. Summa, 193 AD2d 647 [1993]; Liebl v.
Metropolitan Jockey Club, 10 AD2d 1006 [1960].) Summary judgment is appropriate where
the condition of the sidewalk "as described by the parties and depicted in the photographs did not
pose an unreasonable risk of harm to the public and possessed none of the characteristics of a
trap or nuisance." (Id. at 904).
"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." (Trincere v. County of
Suffolk, 90 NY2d 976, 977 [1997]). The court will examine "facts presented, including the
width, depth, elevation, irregularity and appearance of the defect along with the time, place, and
circumstance' of the injury." (Id. at 978). Summary judgment is appropriate where the
width of the defect is slight and there is no elevation differential between the defect and the rest
of the ground. (Losito v. JP Morgan
Chase and Co., 72 AD3d 1033 [2010]). Where the photographs are not clear on their
face, the moving party must provide additional facts to support a prima facie showing for
summary judgment. (Berry v. Rocking
Horse Ranch Corporation, 56 AD3d 711 [2008]). The mere happening of an accident
does not give rise to liability. (Wells v. Finnegan, 177 AD2d 893 [3rd Dep't. 1991].) The
court has discretion, when looking to all the surrounding evidence, to determine that some
evidence is "incredible as a matter of law." (Abrams v. Gerold, 37 AD2d 391 [1st Dep't.
1971].)
Here, plaintiff CHRISTINA SELVAGGIO tripped over the sidewalk in front of her
apartment complex where she had lived since April 4, 2000. In her EBT testimony, the plaintiff
testifies that on the date of the accident, at 8:30a.m., she had been out walking her dog, an
activity that she testified to performing each day and multiple times per day. She similarly
testified that the weather conditions were "dry, clear and sunny." Moreover, she testifies that she
was standing still and looking straight ahead at her dog when her dog suddenly pulled her into a
defect in the sidewalk. Plaintiff also testifies that she may have noticed the alleged defect some
time prior to the time of her accident. Plaintiff identified the sidewalk defect which allegedly
caused her to fall by marking a circle on a photograph with her initials. That particular
photograph attached in her affidavit reveals a number of shaded areas in the concrete, including a
small shaded area which the plaintiff circled. Similarly, in her EBT testimony the plaintiff
contends that the photographs provided represented an accurate description of the accident site.
Defendants' representative Mr. Dizdarevic avers in his affidavit that the defect was
"three inches long, two and one half inches wide, and much less than an inch deep." Neither of
the parties has measured the exact depth of the alleged defect in the photographs which caused
the plaintiff to fall. However, the plaintiff in her affidavit describes the defect as being "more
than one inch deep and probably about two inches deep." The photos attached by both the
plaintiff and defendants reveal several similarly-sized shaded spots along the sidewalk of the
premises in front of 131 Freedom Avenue. This Court finds that as depicted in the photographs
these defects in the sidewalk could not be as deep as one to two inches and finds plaintiff's
contentions in that regard to be incredible as a matter of law. (Abrams, supra at
394). Moreover, the defendant cannot be held liable simply because the plaintiff was pulled by
her dog and caused to trip and fall. As presented, the submitted photographs, even without any
objective measuring device, have evidentiary value when considered in conjunction with the
testimony of the parties. (Berry, [*3]supra at 712).
Accordingly, this Court finds that the facts reveal a de minimus defect in the sidewalk as
a matter of law, and that the defects do not pose an unreasonable risk of harm to pedestrians.The
defendants RICHMOND HEARTLANDS, INC. and GATEWAY ARMS REALTY CORP. have
met their initial burden of showing lack of negligence and the plaintiff has failed to raise an issue
of fact as to whether the sidewalk defect is not trivial.
Accordingly, the defendant's motion for summary judgment is granted and the
complaint is dismissed.
This shall constitute the decision and order of the court.
Dated: July 9, 2010ENTER
s/ Philip G. Minardo
J.S.C.
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