Reid v Phipps House Servs., Inc.

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Reid v Phipps House Servs., Inc. 2011 NY Slip Op 32842(U) October 14, 2011 Supreme Court, New York County Docket Number: 108332/10 Judge: Joan A. Madden 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. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: &i- h/ &iv PART 11 Justice Index Number : IO833212010 INDEX NO. REID, BLANCHE MOTION DATE VS. MOTION SEQ. NO. PHIPPS HOUSE SERVICES SEQUENCE NUMBER : 001 SUMMARY JUDGMENT 00 MOTION CAL. NO. this motion tolfor I " - Notice of Motlonl Order to Show Cause - Attldavlts - Exhibits ... Anawerlng Affidavits - Exhlbits Replylng Affidavlta Cross-Motion: Yes &(No Check one: FINAL DISPOSITION W N O N - F I N A L DISPmFfION Check if appropriate: 0 DO NOT POST 0 REFERENCE SUBMIT ORDER/ JUDG. 0 SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : IAS PART 11 BLANCHE REID, Index No. 108332/10 Plaintiff, -againstPHIPPS HOUSE SERVICES, INC., and BELLWE SOUTH ASSOCIATES, LLC, Defendants Phipps House Services, Inc. ( Phipps ) and Bellevue South Associates, L.P. ( Bellevue ) move for summaryjudgment dismissing the complaint. Plaintiff opposes the motion, which is denied for the reasons below. Plaintiff alleges that on April 2 1,2010, she tripped and fell on a raised sidewalk flag in front of 460-470 Kips Bay Court, located on the south side of 27 h Street and Second Avenue, in Manhattan. Bellevue is the owner of the relevant property and Phipps was hired by Bellevue to maintain the property including the sidewalk where plaintiff fell. Plaintiff testified at her deposition that she was caused to fall by the unevenness of the sidewalk (Plaintiffs Dep. at 20). She also testified that the accident happened as she turned to go from the south to the north corner of 2ThStreet and that there were a lot of people there (Id.at 3 1>. Specifically, plaintiff testified that as she was walking on the sidewalk her right foot struck concrete and then the other one (i.e. the left foot) was up against the ledge and I hit them both together because I went down flat on my face ( k at 39). She identified the area where she fell on J a photograph as the area where there were two different colored pieces of concrete towards the right 1 [* 3] center portion of the photograph, and that the gray or lighter portion was higher than the darker or tan portion of the sidewalk (a 20,23). She also testified that the elevation is to the left of a crack at running diagonally in the flag to the center of the photograph (Id.at 30). Defendants argue that they are entitled to summary judgment as the defect at issue, which they assert is trivial. In support of their position, they rely on photographs of the defect and the expert affidavit of Jeffrey J. Schwalje, P.E. Mr. Schwalje, who reviewed the relevant material and inspected the relevant sidewalk in January 20 1 1, states that the diagonal crack in the inner concrete slab in the area of plaintiff s accident presented no height differentials except the small chip that exhibit a minor depth of 3/8 of an inch. He also opined that %here was no tripping hazard associated with the crack. Defendants also argue that summaryjudgment is warranted in their favor as there is no evidence that they had actual or constructive notice of the defect. In opposition, plaintiff argues that the presence of the edge caused by the height differential is sufficient to raise a jury issue as to whether the defect posed a tripping hazard. In support of her position, plaintiff submits her affidavit to clarify her testimony regarding the location of the accident. She attaches two photographs which she asserts represent the location of the accident. This statement and the photographs are consistent with her deposition testimony regarding the location of the accident. She also states in her affidavit that she did not observe the uneven portion of the sidewalk as the crowd of people on the corner made it impossible to notice the defect. (Plaintiff Aff. 7 7). With respect to notice, plaintiff notes that defendants facility director testified that the sidewalk is cleaned five days a week and that five years before the accident defendants ground down the area where plaintiff fell because the flag was raised (Deposition, V. Banek, at 12-13). 2 [* 4] Plaintiff also assets that defendants expert opinion should not be considered as defendants failed to timely identify him as an expert, and that in any event, it is conclusory. On a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the face.. . Winemad v. New YorkUniv. Med. Ctr,, 64NY2d 851,852 (1985). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist and require a trial. Alvarez v. Prospect H o s ~ .68 NY2d 320, 324 (1986). , Whether a dangerous or defective condition . , . create[s] liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury. Trincere v. Countv of Suffolk, 90 NY2d 976,977 (1997) citinn;Guerriefi Y. Summa, 193 AD2d 647 (2d Dept. 1993). However, trivial defects on a walkway not constituting a trap or nuisance, as a consequence of which a pedestrian might . . .trip, are not actionable. Morale$ v. Riverbav Corn 226 AD2d 271 -7 (1st Dept. 1996). In determining whether an alleged defect is trivial as a matter of law, the court must examine all the facts presented, including the width, depth, elevation, irregularity and appearance of the alleged defect, along with the time, place and circumstances of the injury, and whether it 90 constitutes a trap or snare. Trincere v, County sf Suff~lk, NY2d at 977, citing C a l d d l , v. Vill. gf Isl. Park, 304 NY 268 (1952). Here, even assuming arguendo that Mr. Schwalje s opinion is sufficient to meet the Contrary to plaintiffs position, the court may consider the expert s affidavit despite defendants asserted failure to previously identify him as an expert since there is no indication that such failure was intentional or willful or prejudicial to plaintiff. Hemandex-Vega v. Zwanwr-Psiri Radiolojy Grow, 39 AD3d 710,711 (2d Dept 2007); see also Busse v. Clark Equipment Co,, 182 AD2d 525 (1 Dept 1992). 3 [* 5] defendants burden of showing that the defect on which plaintiff fell was trivial, plaintiff has controverted this showing by providing evidence that the defect constituted a trap or snare based on plaintiffs testimony describing the elevation between the sidewalk flags as an abrupt condition, and in particular, as a condition causing her feet to suddenly strike at concrete ledge, and the photographs of the defect showing the elevated portion of concrete. See e& Dominguez v. O w IV, LLC, 82 AD3d 434 ( lstDept 201 l)(trial court properly found issue of fact existed as to whether defect was trivial where photographs showed irregular, patched and worn surface and plaintiff testified that he fell when his foot got caught in crack on edge of step); Mishaan v. Tobias, 32 AD3d 1000 (2d Dept 2006)(denying summary judgment photographs provided by the plaintiff depicting the alleged defect show that it consisted of a cracked and broken sidewalk, and that a portion of that sidewalk was raised, at least an inch in height, over the remaining portion of the sidewalk); M e n z i e v. Crossroads &a LLC, 291 AD2d 860 (4thDept.), lv dismissed, 98 NY2d 647(2002) (denying defendant s motion for summary judgment where there were questions of fact as to whether the % inch difference in height between concrete slabs outside of arena created a tripping hazard based on testimony from plaintiffs and their children that the height difference was abrupt, not gradual, and that the accident occurred on a m i s t y night in a poorly lit area). Furthermore, plaintiffs testimony that the sidewalk where she fell was crowded so that she could not observe the defect also supports a finding that the defect was not trivial. See Renerallv Argenio v Metropolitan Trmsa, Auth., 277 AD2d 165 (1st Dept 2000)(finding that record raised triable issue of fact as to whether defect was trivial, including plaintiff s testimony that she was looking straight ahead as she walked and that there were many people around her in crowded train station rendered observation of depression on which she fell less likely). 4 [* 6] Finally, contrary to defendants position, the testimony of its facility director raises triable issues of fact as to whether defendants has actual or constructive notice of the defect at issue. Accordingly, it is ORDERED that the motion for summary judgment by defendants is denied; and it is further ORDERED that a pre-trial conference shall be held in Part 11, room 35 1, 60 Centre Street n on November 17,2011 at 2:OO pm. DATED: October(f2011 HON. JOAN A. MADDEN ,: S.C. FILED NEW YORK COUNTY CLERKS OFFICE 5

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