Opinion
12319 Index No. 155259/16 Case No. 2020-02071
11-10-2020
Awilka ALONZO, Plaintiff–Appellant, v. 215 AUDUBON AVENUE HOUSING DEVELOPMENT FUND, Defendant–Respondent.
Rubenstein & Rynecki, Brooklyn (Harper A. Smith of counsel), for appellant. Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.
Rubenstein & Rynecki, Brooklyn (Harper A. Smith of counsel), for appellant.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for respondent.
Friedman, J.P., Renwick, Oing, Mendez, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered November 8, 2019, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant established its prima facie entitlement to judgment as a matter of law by submitting evidence showing that the condition upon which plaintiff tripped and fell was a trivial defect and thus not actionable as a matter of law. Plaintiff testified that she lived at the premises for about five years before the accident, and therefore was familiar with the building's entranceway, and a photograph, which she authenticated as fairly and accurately depicting the subject metal door saddle as it appeared when she fell, shows that it was not hidden or covered and did not constitute a trap or snare (see DaSilva v. KS Realty, L.P., 138 A.D.3d 619, 30 N.Y.S.3d 85 [1st Dept. 2016] ).
Defendant's expert, a licensed architect, also opined that the door saddle was free of defect in design, installation or maintenance and did not pose a tripping hazard. He noted that the gap between the ceramic tile floor and its underside varied between one-quarter and half an inch across the entire walking path, which was below the maximum allowable heights of the Americans with Disabilities Act (ADA) and the buildings codes (see Wright v. Frawley Plaza Houses, Inc., 107 A.D.3d 449, 967 N.Y.S.2d 50 [1st Dept. 2013] ; Etheridge v. Marion A. Daniels & Sons, Inc., 96 A.D.3d 436, 437, 945 N.Y.S.2d 551 [1st Dept. 2012] ).
In opposition, plaintiff failed to raise a triable issue of fact. Neither plaintiff nor her expert measured the gap, and plaintiff did not submit any evidence showing how the height differential between the ceramic tile floor and the underside of the metal door saddle could have been a snare or trap when she fell (see Forrester v. Riverbay Corp., 135 A.D.3d 448, 21 N.Y.S.3d 890 [1st Dept. 2016] ). Although she testified that the door saddle was loose, she did not explain how this defect caused her to trip and fall, but only states that she fell after her left foot bumped into it. She never testified that her foot slipped or became caught in the gap between the ceramic tile floor and the underside of the door saddle.
Plaintiff's expert fails to raise a triable issue of fact as to whether the door saddle was in a defective condition when she fell, because he never inspected the building's entranceway or the door (see Zvinys v. Richfield Inv. Co., 25 A.D.3d 358, 359–360, 808 N.Y.S.2d 640 [1st Dept. 2006], lv denied 7 N.Y.3d 706, 819 N.Y.S.2d 873, 853 N.E.2d 244 [2006] ). Furthermore, plaintiff's expert improperly raised new theories of liability for the first time in opposition to defendant's motion that the door saddle was not in compliance with the building code and the ADA, and the American Society for Testing Materials and the American National Standard Institute (see Ceron v. Yeshiva Univ., 126 A.D.3d 630, 632–633, 7 N.Y.S.3d 66 [1st Dept. 2015] ).