Neider v Kryeziu

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Neider v Kryeziu 2020 NY Slip Op 35085(U) February 3, 2020 Supreme Court, Westchester County Docket Number: Index No. 61375/2018 Judge: Terry Jane Ruderman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 61375/2018 FILED: WESTCHESTER COUNTY CLERK 02/04/2020 09:07 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 02/03/2020 commence the statutory statutory time for appeals appeals as of of right right To commence (CPLR 5513[a]), 5513(a]), you are advised advised to serve serve a copy copy (CPLR of this order, order, with notice notice of of entry, entry, upon upon all parties. of parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK SUPREME NEW YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY -----------------------------------------~--------------------------}C -----------------------------------------.--------------------------x PHILIP NEIDER, PHILIP NEIDER, DECISION and and ORDER ORDER DECISION Plaintiff, Plaintiff, Motion Sequence Sequence Nos. Motion Nos. 1 & 2 Inde}CNo. 61375/2018 Index No. 61375/2018 -against-againstENDRIT KRYEZIU, KRYEZIU, ENDRIT Defendant. Defendant. --------------------------------------------------------------------}C --------------------------------------------------------------------x RUDERMAN, J. RUDERMAN, following papers were considered considered in connection connection with with the the motion motion by defendant defendant for The following papers were summary judgment dismissing the complaint, complaint, and the cross-motion cross-motion by plaintiff summary judgment dismissing plaintiff for summary summary judgment liability: judgment on liability: Papers Papers Notice of Motion, Motion, Affirmation, Affirmation, Exhibits E}ChibitsA Notice of A-H Notice of Cross-Motion, Cross-Motion, Affirmation Affirmation in Opposition Opposition and Support, Support, Notice of E}ChibitA Exhibit A Affirmation in Reply Reply and and Opposition Opposition to Cross-Motion Cross-Motion Affirmation Reply Affirmation Affirmation on the Cross-Motion Cross-Motion Reply Numbered Numbered 1 2 3 4 This is an action action for personal injuries allegedly allegedly sustained sustained in trip and and fall accident accident which which This personal injuries in a trip occurred on February February 14, 2018, 2018, at atappro}Cimately6:00 of the public sidewalk portion of public sidewalk occurred approximately 6:00 p.m., p.m., on a portion abutting defendant's defendant's premises located at 131 131 Franklin Franklin Avenue Avenue in New Rochelle, New York. abutting premises located New Rochelle, New York. Plaintiff claims claims that that there there was was a dangerous dangerous condition condition on the sidewalk sidewalk consisting consisting of of signficantly signficantly Plaintiff uneven flags of of pavement, causing him him to trip on the raised raised portion, and that that the failure failure to uneven pavement, causing portion, and maintain the sidewalk sidewalk in a safe safe condition condition constituted constituted a breach of the the owner's owner's obligation obligation pursuant maintain breach of pursuant section 197 of of the New Rochelle Charter Charter and Code. Code. New Rochelle to section 1 [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 02/04/2020 09:07 AM NYSCEF DOC. NO. 59 INDEX NO. 61375/2018 RECEIVED NYSCEF: 02/03/2020 moving for summary In moving summary judgment judgment dis~issing dismissing the complaint, complaint, defendant defendant initially initially contends contends that he has no liability liability because, that because, while while a New New Rochelle Rochelle statute statute imposes imposes a duty duty on property property owners owners maintain the sidewalk, sidewalk, that that statute of that that duty, duty, to maintain statute does does not impose impose tort tort liability liability for the the violation violation of citing Palazzo of New 1997]). However, citing Palazzo v City of New Rochelle Rochelle (236 AD2d AD2d 528, 528-529 528-529 [2d Dept Dept 1997)). However, although in 1997 the Court' in Palazzo City of Palazzo v City ofNew New Rochelle Rochelle characterized characterized the the New New Rochelle Rochelle although Court'in -Charter and Code Code §S 197 as not not imposing imposing tort tort liability liability for the breach breach of of the duty duty of of abutting abutting ·-Charter landowners to maintain maintain and repair landowners repair sidewalks sidewalks (see id. id. at 528.529), 528-529), the law law has has been been amended amended since the issuance issuance of of that that decision, decision, and since and its current current form includes includes a provision provision imposing imposing liability liability on owners of of adjoining adjoining property owners property who who ,fail fail to maintain maintain sidewalks: sidewalks: "any owner owner of of any occupied occupied or unoccupied "any unoccupied lot or piece piece of of land land or any part part thereof thereof within the City City of of New within New Rochelle Rochelle shall shall fail to maintain maintain the the sidewalks sidewalks and curbs curbs adjoining his or her Subsection (a) and ofland as required required by Subsection and (b) adjoining her lot or piece piece ofland above, whether failure be determined Subdivision (c) above, whether the failure determined though though the procedure procedure of of Subdivision (c) above or otherwise, otherwise, said above said owner owner shall shall be liable liable to any persons persons injured injured as a result result of of such failure failure and of New such and the City of New Rochelle Rochelle shall shall not be liable" liable" (City (City of of New New Rochelle Charter and Code, Rochelle Charter Code, Article Article XXII,S XXII, § 197 [j]). Accordingly, defendant's first basis Accordingly, defendant's basis for his claimed claimed right right to summary summary judgment judgment is rejected. rejected. Defendant next next contends contends that Defendant that the claimed claimed defective defective condition condition was was open open and obvious obvious and inherently dangerous. dangerous. Importantly, not inherently Importantly, the assertion assertion that that an alleged alleged defect defect is "open "open and and obvious" obvious" does not in itself itself present grounds for dismissal does present grounds dismissal of of claim; claim; it is merely merely relevant relevant to a claim claim of of the the plaintiffs comparative comparative negligence Cupo v Karfunkel, plaintiffs negligence (see Cupo Karfunkel, 1l AD3d AD3d 48,52 48, 52 [2d Dept Dept 2003]). 2003)). Regardless of of how obvious it may how obvious may be, a duty to protect protect against against an open open and and obvious obvious condition condition is Regardless avoided only only when when the condition, condition, "as "as a matter avoided matter of of law, is not inherently inherently dangerous" dangerous" (see AD3d 726, 727 [2d Dept Dept 2015]). 2015)). "[T]he Mucciariello v A & D Hylan Hylan Blvd. Assoc., Assoc., LLC, LLC, 133 AD3d Mucciariello "[T]he determination of of whether whether a condition condition is not inherently ... depends inherently dangerous dangerous ... depends on the totality totality of of determination specific facts of of each each case" case" (Grafjino (GrajJino v City of the specific of New New York, 162 AD3d AD3d 990,991 990, 991 [2d Dept Dept 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 02/04/2020 09:07 AM NYSCEF DOC. NO. 59 INDEX NO. 61375/2018 RECEIVED NYSCEF: 02/03/2020 2018]). 2018]). In contrast to the types of conditions deemed riot inherently dangerous in cases such as Graffino and Mucciariello - a utility box recessed into the sidewalk in Graffino, and a line of decorative stone along the sides of a paved walkway in Mucciariello - sidewalk flags that are significantly uneven are frequently treated as defective conditions, even where the claims. are dismissed on other grounds (see e.g. Fleisher v City ofNew York, 120 AD3d 1390 [2d Dept 2014]; Martens v County ofSuffolk, 100 AD3d 839 [2d Dept 2012]; Ellanan v Consolidated Edison ofN Y, 71 AD3d 817 [2d Dept 2010]). Considering such factors as the "width, depth, elevation, irregularity and appearance of the claimed defect (Trincere v County ofSuffolk, 90 NY2d 976, 978 [1997]), its physical appearance and how it is situated (see Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 72 · [2015]), in this instance a question of fact is presented as to whether the claimed defect constitutes an actionable dangerous condition. Based on this question of fact, plaintiffs crossmotion for summary judgment on the issue of liability is denied; the assertion that the complained-of condition constitutes a dangerous or defective condition cannot be decided as a matter of law here. .· Finally, defendant contends that he did not create or have notice ofthe_condition, since he purchased the property in December 2017, did not start moving in until mid-January 2018, and did not reside there until mid-February 2018. However, a property owner has constructive notice of any defective condition that is visible and apparent and in existence for a sufficient length of time prior to the accident to permit it to be discovered and remedied (Knack v Red [2d Dept 2012]). Defendant's. delay in Lobster 286, N & D Rests., Inc., 98 AD3d 473,473 . moving in does not alter the constructive notice analysis. The appearance of the sidewalk, as 3 [* 3] 3 of 4 INDEX NO. 61375/2018 FILED: WESTCHESTER COUNTY CLERK 02/04/2020 09:07 AM NYSCEF DOC. NO. 59 RECEIVED NYSCEF: 02/03/2020 depicted photographs, is enough depicted in the the submitted submitted photographs, enough to provide provide' a possible possible basis basis for a finding finding that that the condition present for a sufficient condition was present sufficient length length of of time time to to establish establish constructive constructive notice notice (see Gordon Gordon a/Natural 67 NY2d 836, 836,837-838 (1986]). Natural History, History, 67NY2d 837-838 [1986]). v American American Museum Museum of view of of th~ the foregoing, foregoing, it is hereby hereby In view ORDERED judgment dismissing ORDERED that that defendant's defendant's motion motion for summary summary judgment dismissing the the complaint complaint is denied, denied, and it is further. further- . . ORDERED plaintiffss cross-motion judgment on issue ofliability ORDERED that that plaintiff cross-motion for summary summary judgment on the thejssue of liability is denied, denied, and it is further further ORDERED that all all parties directed to appear appear at 9:15 a.m. oil on Tuesday, Tuesday, March March 17, O~EREDthat parties are directed . . 2020, in the the Settlement Settlement Conference Conference Part, Part, room room 1600 of of the the Westchester Westchester County County Courthouse Courthouse 2020, located at 111 Dr. Martin Martin Luther Luther King King Jr. Boulevard, Boulevard, White White Plains~ Plains, New York, 10601, 10601, fo to ·- located New York, schedule a trial. trial. schedule This This constitutes constitutes the the Decision Decision and and Order Order of of the Court. Court. Dated: Dated: White White Plains, Plains, New New York York :3 ,, 2020 February February:3 2020 · ~~ ~~ 4 [* 4] 4 of 4

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