Benyamin v Gansevoort LLC

[*1] Benyamin v Gansevoort LLC 2021 NY Slip Op 50006(U) Decided on January 6, 2021 Supreme Court, New York County Reed, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 6, 2021
Supreme Court, New York County

Lucy Benyamin, Plaintiff,

against

Gansevoort LLC, REGENT SPE LLC, Defendant.



156748/2017



Plaintiff:

Silverstein & Kahn, PC.

1160 E Jericho Tpke, Huntington, NY 11743

By: Larry Silverstein, Esq.

Defendants:

Hickey Smith LLP

1040 Avenue of The Americas Suite 9c, New York, NY 10018

By: Mark Steven Grodberg, Esq.
Robert R. Reed, J.

Defendants Gansevoort LLC (Gansevoort) and Regent SPE LLC move for [*2]summary judgment dismissing the complaint. Plaintiff Lucy Benyamin cross moves for partial summary judgment.

This is a personal injury suit involving allegations of negligence. The complaint alleges that on April 1, 2017, at approximately 7:45 pm, plaintiff, while walking along a sidewalk between 9th Avenue and Hudson Street, tripped and fell on a specific depression and suffered severe injuries. The complaint seeks damages from defendants on the ground that they allowed a defective condition to exist on their premises and/or they had actual or constructive notice of a defective condition on their premises prior to the accident.

Issue was joined and discovery has been completed. Defendants now move for summary judgment dismissing the complaint on the ground that the alleged defect on the sidewalk was de minimus, or trivial in nature, and not actionable as a matter of law. Defendants submit as evidence deposition testimony from plaintiff, her husband Daniel Benyamin, and an officer who represents defendant Gansevoort; photographs of the subject sidewalk; and an expert report from engineer David Behnken, working on behalf of defendants.

Plaintiff testified that, on the day of the accident, she had dinner at a restaurant located in a building under Gansevoort's ownership, and left the restaurant with her husband, brother and brother-in-law. At that time, she stated that it was dusk, but there was adequate illumination. According to plaintiff, her husband and brother-in-law were walking ahead of her. She was looking straight ahead, not looking down, and wearing dancing shoes. Plaintiff testified that her right foot then caught on a height differential in the sidewalk. She had seen no defect before then. As a result, plaintiff fell forward and landed face down on the sidewalk. She stated that she was very disoriented after the fall and later noticed the differential on the sidewalk.

Plaintiff's husband, Daniel Benyamin, testified at his deposition. He stated that, after leaving the restaurant, he and his brother-in-law were walking ahead of plaintiff. He passed the location of the differential before plaintiff did without tripping over it. He testified that he did not witness plaintiff falling down, but heard her fall. He and his brother-in-law helped her up a few minutes after her fall. Benyamin testified that plaintiff was not able to communicate clearly at that time until she was taken to a hospital. He did not investigate the specific location of the accident afterwards, but confirmed photographs of the subject sidewalk regarding the location and the alleged defect.

Elon Kenchington, who identified himself as the Chief Operations Officer of the Gansevoort Hotel, where plaintiff had dinner, and which has control over the subject sidewalk, testified on behalf of Gansevoort. Kenchington stated that he was not aware of the differential within the subject sidewalk and received no complaints about a defect prior to the accident. He testified that his personnel, specifically the security staff and the maintenance department, inspected its property, including the subject sidewalk, each day — in the morning, afternoon and evening. Kenchington also testified that the housekeeping staff inspected the sidewalk for cleanliness. When on site, he stated that he walked along the sidewalk at least twice a day. He identified the photographs of the subject sidewalk.

Defendants submit the letter-report from their expert, David Behnken, who is employed by Affiliated Engineering Laboratories, Inc. Behnken affirms that he examined the evidence, including the Bill of Particulars, the deposition testimony and the photographs, and that he personally inspected the area of the subject sidewalk on September 27, 2018, although he concedes that by then, the sidewalk had been replaced by New York City employees. [*3]His conclusion supports defendants' argument that the differential in the sidewalk, about 7/16" in depth, was minimal by legal standards, not in violation of the Administrative Code of the City of New York Code (Code). Behnken claims that the differential did not constitute a trap or nuisance and did not create a vertical projection above the walking space or a significant variation in the walking surface. Behnken refers to Gansevoort regularly inspecting the sidewalk area and not receiving any complaints about a defective condition prior to the accident. Behnken then asserts that plaintiff's failure to exercise reasonable care at the time was a probable cause of her accident, referring to her alleged lack of attentiveness and choice of footwear.

Defendants contend that, based on the evidence, there is no actionable claim against them. They argue that the alleged defect was too trivial and, upon reasonable care, could have been avoided. They refer to the illumination at the time of the accident, the lack of obvious distractions, and the fact that the photographs revealed that the edge of the subject sidewalk was straight and in the separation between two sidewalk flags, indicating no trap-like condition. Defendants contend that this is sufficient proof to grant summary judgment.

In her opposition to the motion, plaintiff discusses the extent of her injuries that resulted from her accident. She blames defendants for this accident, arguing that they had notice of the sidewalk defect beforehand. Plaintiff submits an expert affidavit from Professional Engineer Harold Krongelb to counter the claims and conclusion of Behnken (plaintiff argues, moreover, that Behnken's report is procedurally improper). Krongelb states that Behnken examined the subject sidewalk after it was remodeled and had not seen it in its defective condition. Thus, admittedly, Behnken had relied on the earlier photographs to create his measurements. While Behnken came up with the 7/16" differential, Krongelb came up with his own calculation from his observation of the photographs, concluding that the differential was 3/4." According to Krongelb, this is the more accurate measurement and it is deemed a trap, a violation of section 19-152 of the Code.

Plaintiff also argues that, at the time of the accident, the absence of joint filler in the sidewalk and the presence of uneven sidewalk flags compounded the danger of the condition. Plaintiff contends that, despite their evidence, defendants did not shift the burden of proof to her.

In reply, defendants submit a notarized copy of the Behnken letter-report. They argue that their expert had done a more specific and accurate measurement of the sidewalk differential than plaintiff's expert, which they regard as inconclusive and speculative. Defendants contend that, despite the assertion that the differential was ¾", the fact that there was no evidence of a trap-like condition, that there were no distractions alleged prior to the accident, and that defendants had no prior notice of a defective condition on the sidewalk, is enough proof to preclude them from any claim of liability for the accident.

Plaintiff cross moves for partial summary judgment on the issue of liability. Plaintiff submits as evidence her deposition testimony and that of Kenchington, and the photographs. She contends that the testimony shows that she tripped and fell over a substantial differential on the sidewalk and that defendants' employees had inspected and examined that sidewalk routinely. Based on his testimony, Kenchington personally, and the various employees under his supervision, had repeatedly and regularly seen the subject sidewalk prior to the accident.

Plaintiff argues that this constitutes actual and constructive notice of a defective condition, an adequate definition of common-law negligence. Plaintiff argues that she is entitled [*4]to partial summary judgment because defendants cannot provide an explanation of what happened that would preclude negligence. Since she is moving on liability, she avers that the question that culpable conduct on her part may have contributed to her accident would remain an open one, since the issue of damages would remain in dispute. Plaintiff argues that she would be entitled to succeed in her motion even if she were partially liable, claiming that she only has to prove that defendants are substantially liable in this case.

Defendants have not opposed or responded to the cross motion.

"It is axiomatic that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of factual issues" (Birnbaum v Hyman, 43 AD3d 374. 375 [1st Dept 2007]). "The substantive law governing a case dictates what facts are material, and '[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment'" (People v Grasso, 50 AD3d 535, 545 [1st Dept 2008]) [citations and quotation marks omitted]. "To prevail on a summary judgment motion, the moving party must provide evidentiary proof, in admissible form, sufficient to warrant the direction of summary judgment in his or her favor" (Kershaw v Hospital for Special Surgery, 114 AD3d 75, 81 [1st Dept 2013]). Once this burden is met, the burden shifts to opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial" (id. at 82).

"A plaintiff alleging injury by a dangerous condition must show that defendant either created the condition, or failed to remedy it, despite actual or constructive notice thereof " (Haseley v Abels, 84 AD3d 480, 482 [1st Dept 2011] [citation omitted]). To prove negligence, plaintiff must establish a duty on defendant's part, a breach of that duty, and the breach as a proximate cause of the injury to plaintiff (see Elmaliach v Bank of China, Ltd., 110 AD3d 192,193 [1st Dept 2013]).

In moving for summary judgment, defendants do not deny that there was a defective condition that resulted in plaintiff's injuries. They argue that, despite the existence of a sidewalk defect, said defect was too trivial to constitute an actionable condition. They also argue that the defect was too open to constitute a trap or nuisance. In the absence of distractions that would have blocked plaintiff's vision prior to the accident, defendants state that the circumstances do not warrant any action against them.

In determining whether a defect is trivial as a matter of law,[FN1] the court must examine [*5]all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect, along with the time, place and circumstances of the injury (see Trincere v County of Suffolk, 90 NY2d 977, 978 [1997]). Since the subject sidewalk no longer has the defective condition, the parties have attempted to determine the nature of the differential by examining the photographs taken from an earlier time, and making what they consider appropriate measurements. Both sides have come up with slight, but significantly, different measurements. Defendants' expert claims that the differential was less than ½," while plaintiff's expert claims ¾," citing section 19-152[a][4] of the Code. That section refers to "Trip Hazards" and provides as follows:

"A trip hazard is where the vertical grade differential between adjacent sidewalk flags is greater than or equal to one half inch or where a sidewalk flag contains one or more surface defects of one inch or greater in all horizontal directions and is one half inch or more in depth."

While plaintiff argues that a ¾" differential is a substantial defect pursuant to the Code, defendants argue that Code violations are not negligence per se, but only evidence of negligence, which is true (see Elliot v City of New York, 95 NY2d 730, 737 [2001]). Defendants also dispute plaintiff's expert's method of calculation and his conclusions. All the same, defendants contend, that even if plaintiff's expert is correct, there is still no proof of a serious, non-trivial defect in the absence of additional evidence that the defect constituted an actual trap.

The court finds that defendants are entitled to summary judgment. The photographs are admissible evidence and, while there is a dispute as to the depth of the differential, there is sufficient proof indicating that there was no trap condition which would impose liability. The condition was not jagged or distorted. There was no evidence of distractions prior to the incident or a lack of illumination or other obfuscation that would have complicated the situation. Therefore, defendants are not liable for allowing a defective condition to exist, due to the condition's trivial nature. Plaintiff's cross motion for summary judgment is denied as moot.

Accordingly, it is

ORDERED that defendants Gansevoort LLC and Regent SPE LLC's motion for summary judgment is granted and the complaint is dismissed with costs and disbursements to defendants as taxed by the Clerk upon a submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly; and it is further

ORDERED that plaintiff Lucy Benyamin's cross motion for partial summary judgment is denied.

DATE January 6, 2021

ROBERT R. REED, J.S.C. Footnotes

Footnote 1: As the court in Giraldo v Brookfield Fin. Props., L.P., 2018 NY Misc. LEXIS 5901, 2018 NY Slip Op 33112(U) [Sup Ct, NY Co 2018] [Hon. Gerald Lebovits, J.], observed: "While it is generally true that the finding of the existence of a dangerous or defective condition depends on the peculiar facts and circumstances of each case and is ordinarily a question of fact for the jury, not every determination poses a jury question." (Outlaw v Citibank, N.A., 35 AD3d 564, 564 [2d Dept 2006] [internal quotation marks and citations omitted].) For example, it is up to the court to determine whether a defect is trivial. (Id.; accord Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] (["Of course, in some instances, the trivial nature of the defect may loom larger than another element. Not every injury allegedly caused by an elevated brick or slab need be submitted to a jury"]; Hymanson v A.L.L. Assocs., 300 AD2d 358, 358 [2d Dept 2002] ["[A]lleged defects may, as a matter of law, be too trivial to be actionable].) Thus, the question of whether a defect is in fact trivial, is a matter for the court, rather than the jury. (Id., *12-*13).