Blokh v Andy's Sea Food & Grill

[*1] Blokh v Andy's Sea Food & Grill 2013 NY Slip Op 51692(U) Decided on October 2, 2013 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 2, 2013
Supreme Court, Queens County

Olga Blokh, Plaintiff,

against

Andy's Sea Food & Grill; L & T JU FENG CORP; and 95 QUEENS BLVD., LLC, Defendants.



5024/2011

Robert J. McDonald, J.

The following papers numbered 1 to 28 were read on this motion by defendant, ANDY'S SEA FOOD & GRILL, for an order, pursuant to CPLR 3212, granting summary judgment in favor of said defendant and dismissing the plaintiff's complaint and all counterclaims and cross-claims; and the cross-motion of defendant 95 QUEENS BLVD., LLC for an order pursuant to CPLR 3212 dismissing the plaintiff's complaint and all cross-claims against it or in the alternative, for an order pursuant to CPLR 3001 finding that co-defendant Andy's Sea Food & Grill is obligated to defend and indemnify defendant, 95 QUEENS BLVD. LLC for any recovery by the plaintiff in this action:

Papers

Numbered

Andy's Sea Food Notice of Motion-Exhibits...............1 - 10

95 Queens Blvd Corp Cross-Motion-Exhibits..............11 - 16

Plaintiff's Affirmations in Opposition to Motion

and Cross-Motion (2)...................................17 - 21

95 Queens Blvd Affirmation in Opposition [*2]

to Cross-Motion and Reply Affirmation (2)..............22 - 28

_________________________________________________________________

This is an action for damages for personal injuries sustained by Olga Blokh, on July 15, 2010, when she tripped and fell on the sidewalk in front of the premises located at 95-26 Queens Boulevard, Rego Park, Queens County, New York. Plaintiff claims that she tripped as a result of uneven sidewalk slabs as a result of which she sustained a fracture of her right foot.

The plaintiff commenced an action for negligence against the tenants, Andy's Sea Food & Grill Restaurant ("Andy's") its predecessor tenant, L & T Ju Feng, and the owner of the building, 95 QUEENS BLVD., LLC {"95 Queens Blvd"), by filing a summons and verified complaint on March 1, 2011. Issue was joined by the service of Andy s verified answer dated April 21, 2011 and by service of 95 Queens Blvd's verified answer on or about May 2, 2011. Defendant L & T Ju Feng Corp. has not served an answer to the complaint and is in default. Plaintiff filed a note of issue on September 27, 2012. The case is on the calendar of the Trial Scheduling Part on October 23, 2013.

The gravamen of the plaintiff's action is that each defendant was negligent in the ownership, operation, management, maintenance, repair and control of the area in failing to maintain the sidewalk in a proper and safe condition; in permitting a portion of the sidewalk to remain in a dangerous and defective condition, in failing to inspect the area, in allowing a raised area to exist, and in failing to warn of the unsafe condition. In her supplemental bill of particulars dated November 11, 2011, the plaintiff states that the accident happened on or about the dividing line between the sidewalk flags, running parallel to the street and that the defect claimed includes the misleveled sidewalk area with a slope.

Plaintiff claims that each defendant had actual notice and constructive notice of the hazardous condition in that the condition existed for such period of time that defendants, in the exercise of due care, should have recognized and remedied it.

Defendants Andy's and Queens Blvd., now move for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that each defendant bears no liability for negligence for the allegedly uneven sidewalk slabs abutting their premises. Defendants contend that the plaintiff failed to demonstrate that the defendants caused or created the dangerous condition complained of or had actual or constructive notice of the condition. Defendants also assert that despite their duty to [*3]keep the premises in reasonably safe condition, the alleged dangerous condition is trivial in nature based upon the fact that the height differential between the sidewalk slabs was less than one inch. The defendant building owner also contends that if the Court finds that the owner is liable for damages for plaintiff's injuries, than based upon the lease agreement, the co-defendants, are required to indemnify him for his defense and for any damages for which he is held to be liable.

In support of the motion, Andy's counsel, Alison H. Weinstein, Esq., submits her own affirmation; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; copies of the transcripts of the examinations before trial of plaintiff, Olga Blokh; defendant Andy's by Bin Zeng; 95 Queens Blvd by Linh Huang; and photographs of the allegedly hazardous condition.

In her examination before trial, plaintiff, Olga Blokh, testified that on the date of the accident she was coming from the post office and taking a walk with her seven year old son to Marshall's on Queens Boulevard. She stated that she walked on the sidewalk about six times a year when she went to the post office. She has lived in the neighborhood for 13 years. She stated that her accident happened at approximately 2:00 p.m. on Queens Boulevard between 62nd Drive and 63rd Drive. When asked to describe the accident she stated:

"I was looking in front of me, and I felt like something like my foot twisted and I felt burning and pain. I looked down. I couldn't move my foot. That's why I looked down, and I remember seeing there was like space between the sidewalk tiles. I don't know how else to call it. Like one closer to the store and one that's closer to the — it's like two parts. So the one that was closer to the store was like higher that one closer to the cars. That's where I saw my foot twist and then I felt a sharp pain." She testified that she fell after she stepped on the line between the two sidewalk flags. She stated that she had walked on that sidewalk before and never noticed the condition. She identified the area in front of Andy's where she fell on certain photographs shown to her at the deposition. She stated that in her opinion the height differential between the two sidewalk flags was an inch and a half and possibly two inches although she didn't actually measure it. She stated that she never noticed the height differential on any of the previous occasions she walked on that particular sidewalk.

Defendant also submits the deposition testimony of Bin Zheng who testified that his wife is a 60 per cent owner of Andy's Sea Food located at 95-26 Queens Boulevard, Rego Park. He states that [*4]he has been the manager of the restaurant since May 14, 2010 when they bought the business from L & T Ju Feng Corp. and took an assignment of the existing lease. He stated that the landlord of the building is 95 Queens Blvd. LLC. He states that under the terms of the lease Andy's is responsible for cleaning the sidewalk for debris and for snow. He states that the sidewalk is inspected and cleaned on a daily basis before the store is opened. He states that his company has not done any repair work outside the store since the time they purchased it. When asked who has the responsibility to fix the sidewalk in front of the store, he stated that he would call the landlord in that situation. He reviewed recent photographs taken of the front of the store and stated that the sidewalk looked the same now as it did since July 2010, and it looked the same way in May 2010 when he purchased it. When asked if he ever noticed a height differential in the sidewalk flags in front of the store, he replied that the height differential looked like less than an inch. He stated that he never made any complaints to the landlord regarding the height differential.

Linh Huang, a manager working for 95 Queens Blvd, LLC, testified that she is married to Henry Huang an owner 95 Queens Boulevard LLC. She identified a lease that 95 Queens Boulevard entered into with the prior tenant, L & T Ju Feng on October 20, 2008. She was aware of the assignment of the lease to Woo Foo Corp. the corporate owner of Andy's. With respect to the responsibility for maintenance and repair of the sidewalk, she testified that paragraph 4 of the rider to the lease states that the tenant is responsible to maintain the sidewalk and other parts of the building. She also stated that the building owners rarely visited the premises unless a tenant called with regard to a particular issue. She identified two photographs that depicted the sidewalk in front of Andy's, but stated that she never noticed any height differential between the sidewalk flags in front of the store. She stated that at no time since July 15, 2010 did 95 Queens Blvd. receive a complaint regarding a dangerous condition on the sidewalk.

In moving to dismiss the complaint, defendant Andy's contends that based upon the deposition testimony of the parties and the photographs identified by the plaintiff, the alleged defect is too trivial to be actionable based upon the fact that there was a small height differential, the accident happened during daylight hours, on a clear sunny day, and that the plaintiff had traversed the same sidewalk many times over the past thirteen years. Citing several recent cases, counsel claims that a property owner may not be held liable in damages for trivial defects on a walkway, not constituting a trap or [*5]nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes or trip over a raised projection. Counsel cites Trincere v County of Suffolk, 90 NY2d 976 [1997], in which the Court of Appeals stated that , "not every injury allegedly caused by an elevated brick or slab need be submitted to a jury." In Trincere, supra., the court held that a cement slab elevated ½ inch above the surrounding slabs was too trivial to be actionable. Counsel also cites Murray v City of New York 15 ADd3d 636 [2d Dept. 2005][one-half inch difference in height between the pavement too trivial to be actionable]; Schwartz v Bleu Evolution Bar & Rest. Corp., 90 AD3d 488 [2d Dept. 2011] [one-half inch gap between the flags was trivial and plaintiff has not come forward with evidence to show that the defect presented a significant hazard despite being de minimis]; and Milewski v Washington Mut., Inc., 88 AD3d 853 [2d Dept. 2011][under all the circumstances, including the weather conditions on the day of the injured plaintiff's fall, her unobstructed view of the claimed defect, and the appearance and location of the height differential, the claimed defect which was between one and two inches was trivial and therefore not actionable]; Copley v Town of Riverhead, 70 AD3d 623 [2d Dept. 2010]).

Defendant 95 Queens Blvd. LLC, the owner of the building located at 95-26 Queens Boulevard, Rego Park, cross-moves for an order dismissing the plaintiff's complaint on the ground that the alleged defect is trivial in nature. Co-defendant states that it joins in the tenant's motion to dismiss and requests dismissal against 95 Queens Blvd for the same reasons asserted in the co-defendant's motion and adopts and incorporates the same arguments as to the trivial nature of the defect. Counsel asserts that it is clear from the photographs submitted that the purported height differential is not more than one half of an inch and not substantial enough to support a cause of action as a matter of law.

In opposition, plaintiff argues that the defendants have failed to make a prima facie showing that the condition in question was too trivial to be actionable or that it did not have actual or constructive notice of the allegedly hazardous condition. In support of the opposition, the plaintiff attaches the affidavit of engineer, Scott Silberman. As the sidewalk was repaired prior to his being retained, the engineer utilized the photographs and deposition testimony in order to arrive at his conclusions. Plaintiff states that the expert was retained primarily to oppose the motion and therefore he did not delay in exchanging the expert witness information as the expert information was not available until the time of the submission of [*6]the affirmation in opposition. In his report the expert states that "there is a defect in the sidewalk by having a vertical grade differential of 3/4 to 1 inch which runs between adjacent sidewalk flags for a length of approximately 4 to 7 feet in a jagged irregular and uneven manner." Since the joint runs parallel to one walking on the sidewalk, such as the plaintiff in this case, the sidewalk vertical grade differential is not open and obvious, in camouflaged, not readily apparent and difficult to detect." He states that, in his opinion, these conditions made this sidewalk defect a trap-like condition, since there existed an irregular mis-leveled surface under plaintiff, which condition was difficult to detect and not open and obvious under the circumstances." Counsel also argues that even if the plaintiff's evidence was sufficient to make a prima facie showing that the defect was trivial, the plaintiff's expert report raises a triable issue of fact with respect to liability.

Plaintiff's counsel also opposes the motion for summary judgment submitted by 95 Queens Blvd. on the ground that 95 Queens Blvd. as owner has a non-delegable duty under NYC Administrative Code § 7-210 which shifts liability for sidewalk defects from the City of New York to the owner of the adjacent property (see Collado v Cruz, 81 AD3d 542 [1st Dept. 2011]; James v Blackmon, 58 AD3d 808[2d Dept. 2009]) Canaie v G & G II Realty, 35 Misc 3d 1203(A) [Sup. Crt. Queens Co. 2012];.

Andy's submits a report from its expert, Robert L. Schwartzberg, who was recently retained by the defendant. In his affidavit, Mr. Schwartzberg, a registered professional engineer, states that the photographs submitted by the plaintiff's expert do not show a ruler in place at the accident site which would depict the actual measurement of the height differential between the interfacing sidewalk flags. In his opinion the photographs no not provide evidence that there existed a height differential of one-half inch, or more. He states that the photographs do not provide evidence from which one could accurately determine the height differential and that with a two dimensional photograph one cannot accurately judge the depth of the crack.

Upon review and consideration of the defendant Andy's motion, defendant 95 Queens Blvd's cross-motion, plaintiff's affirmation in opposition, and defendant's reply thereto, this court finds as follows:

Generally, the issue of whether a dangerous or defective condition exists on real property depends on the particular facts of each case, and is properly a question of fact for the trier of fact (see Trincere v County of Suffolk, 90 NY2d 976 [1997]; [*7]Turuseta v Wyassup-Laurel Glen Corp., 91 AD3d 632[2d Dept. 2012]; Milewski v Washington Mut., Inc., 88 AD3d 853[2d Dept. 2011]). However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see Aguayo v New York City Hous. Auth., 71 AD3d 926 [2d Dept. 2010]; Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d 481 [2d Dept. 2007]; Outlaw v Citibank, N.A., 35 AD3d 564 [2d Dept. 2006]; Taussig v Luxury Cars of Smithtown, Inc., 31 AD3d 533 [2d Dept. 2006]). In determining whether a defective condition is trivial as a matter of law, a court must examine the facts presented, including the width, depth, elevation, irregularity, and appearance of the condition, along with the time, place, and circumstances of the injury (see Trincere v County of Suffolk, supra at 978; Grosskopf v 8320 Parkway Towers Corp., 88 AD3d 765[2d Dept. 2011]; Pennella v 277 Bronx River Road Owners, Inc., 309 AD2d 793 [2d Dept. 2003]). There is no "minimal dimension test" or "per se rule" that the condition must be of a certain height or depth in order to be actionable (Trincere v County of Suffolk, supra. Here this court finds that the defendants have established, prima facie, entitlement to judgment by demonstrating the defect was trivial as a matter of law.

Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable (see Schenpanski v Promise Deli, Inc., 88 AD3d 982 [2d Dept. 2010]; Aguayo v New York City Hous. Auth., 71 AD3d 926 [2d Dept. 2010]; Fisher v JRMR Realty Corp., 63 AD3d 677[2d Dept. 2009]; Outlaw v Citibank, N.A., 35 AD3d 564[2006]; Maiello v Eastchester Union Free School Dist., 8 AD3d 536 [2d Dept. 2004]).

Careful scrutiny of the photographs depicting both the area where the incident occurred and the slight height differential which allegedly caused the injured plaintiff's fall, as well as the other evidence presented, supports the conclusion that, as a matter of law, the alleged defect is too trivial to be actionable and did not have the characteristics of a trap (see Schiller v St. Francis Hosp., Roslyn, NY, 108 AD3d 758 [2d Dept. 2013]; Maciaszek v Sloninski, 105 AD3d 1012 [2d Dept. 2013]; Sokolovskaya v Zemnovitsch, 89 AD3d 918 [2d Dept. 2012]; Schenpanski v Promise Deli, Inc., 88 AD3d 926 [2d Dept. 2010]; Shiles v Carillon Nursing and Rehabilitation Center, LLC, 54 AD3d 746 [2008]; Dick v Gap, Inc., 16 AD3d 615 [2005]; Dynov v 16th Avenue Realty Associates, LLC, 292 AD2d 335 [2002]). The change in elevation between the two concrete slabs appears to be less than one inch. The weather was sunny and clear and the plaintiff [*8]had traversed this particular sidewalk in her neighborhood on many prior occasions. In short, notwithstanding whether the tenant or landlord was responsible for the repair of the sidewalk adjacent to the property, the condition of the sidewalk, as described by the parties and as reviewed by the Court in the photographs, does not pose an unreasonable risk of harm to the public and does not possess any of the characteristics of a snare, trap or nuisance (see Joseph v Villages at Huntington Home Owners Assn., Inc., 39 AD3d 481[2d Dept. 2007][5/8ths inch height differential did not constitute a trap or nuisance and was merely a trivial defect which was not actionable as a matter of law ]; Zalkin v City of New York, 36 AD3d 801 [2d Dept. 2007][the 3/4 of an inch difference in the height elevation between the edge of the concrete slab which had caused the plaintiff to fall and the adjacent concrete slab was too trivial to be actionable]; Hawkins v Carter Cmty. Hous. Dev. Fund Corp., 40 AD3d 812 [2d Dept. 2007][a gap between two adjacent sidewalk slabs, between 1¼ and 1½ inches deep did not, by reason of its location, adverse weather, lighting conditions, or other relevant circumstances, have any of the characteristics of a trap or snare, and was too trivial to be actionable];.

In opposition thereto, plaintiff failed to establish a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Although, plaintiff presented the affidavit of her own expert indicating that the height differential was 3/4 to 1 inch and had the characteristics of a tripping hazard, the expert's opinion lacks an evidentiary basis as he did not take measurements at the scene nor did he provide a sufficient explanation of how he determined the height differential at the time of the plaintiff's fall based upon the photographs (see Lansen v SL Green Realty Corp., 103 AD3d 521 (1st Dept. 2013]).

Accordingly, based upon the foregoing it is hereby,

ORDERED, that the motion by defendant ANDY'S SEAFOOD & GRILL for summary judgment dismissing the plaintiff's complaint and all cross-claims and the cross-motion by defendant 95 QUEENS BLVD, LLC for an order dismissing the plaintiff's complaint and all cross-claims is granted

Dated: October 2, 2013

Long Island City, NY

____________________ [*9]

ROBERT J. MCDONALD

J.S.C.