Opinion
13045-13045A Index No. 153486/15 Case No. 2020-02895
02-04-2021
Sondra MARKS, Plaintiff–Appellant, v. 79TH STREET TENANTS CORP. et al., Defendants–Respondents.
Pazer, Epstein, Jaffe & Fein, P.C., New York (Jason Levine of counsel), for appellant. Mauro Lilling Naparty, LLP, Woodbury (Seth M. Weinberg of counsel), for 79th Street Tenants Corp, respondent. Perry, Van Etten, Rozanski & Kutner, LLP, Melville (Thomas F. Maher of counsel), for New 56–79 I.G. Associates, L.P., respondent.
Pazer, Epstein, Jaffe & Fein, P.C., New York (Jason Levine of counsel), for appellant.
Mauro Lilling Naparty, LLP, Woodbury (Seth M. Weinberg of counsel), for 79th Street Tenants Corp, respondent.
Perry, Van Etten, Rozanski & Kutner, LLP, Melville (Thomas F. Maher of counsel), for New 56–79 I.G. Associates, L.P., respondent.
Manzanet–Daniels, J.P., Singh, Kennedy, Mendez, JJ.
Orders, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about December 23, 2019, which granted defendants’ motions for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motions denied.
Although defendants made out a prima facie case that the sidewalk defect that caused plaintiff to trip and fall was trivial and not actionable, plaintiff raised triable issues of fact in opposition ( Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 78, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015] ). Defendants and the motion court relied extensively on the height differential between the sidewalk flags, applying a mechanistic disposition of a case based exclusively on the dimension of a sidewalk defect, which defendants’ expert measured to be seven-sixteenths of an inch (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] ; Schwartz v. Bleu Evolution Bar & Rest. Corp., 90 A.D.3d 488, 935 N.Y.S.2d 10 [1st Dept. 2011] ).
Plaintiff presented evidence that the height differential was not the only factor that caused her to trip. First, plaintiff established that the sidewalk was covered by a scaffolding that darkened the sidewalk and made it harder to see a sidewalk defect ( Keech v. 30 E. 85th St. Co., 173 A.D.3d 645, 645–646, 103 N.Y.S.3d 81 [1st Dept. 2019] ; cf. Hutchinson, 26 N.Y.3d at 66, 80, 19 N.Y.S.3d 802, 41 N.E.3d 766 ). Second, plaintiff established through her expert that the expansion joint between the sidewalk flags was recessed an inch below the surface, when it should have been filled in and flush with the surface (see New York City Department of Transportation Highway Rule § 2–09[f][4][v]). The recessed expansion joint, which was repaired by the time defendants’ expert examined the sidewalk, added to the hazard (cf. Kavanagh v. Archdiocese of the City of N.Y., 152 A.D.3d 654, 58 N.Y.S.3d 579 [2d Dept. 2017] ). Moreover, defendants’ expert did not inspect the area where plaintiff fell until more than 3½ years after plaintiff's accident. Accordingly, the court would have been entitled to discount that expert's conclusions, at least insofar as they relied heavily on the height differential without taking into account the deteriorated expansion joint or the scaffolding (see Rios Cruz v. Mall Props., Inc., 145 A.D.3d 463, 42 N.Y.S.3d 155 [1st Dept. 2016] ). Plaintiff's expert averred that he visited the location of plaintiff's accident twice, once a few months after plaintiff's accident, and once after defendant's expert's analysis, and found that the area had been patched in between those two visits, corroborating plaintiff's eyewitness testimony that she observed after her accident that the area had been repaired and contradicting the testimony of the superintendent of 435 East 79th Street that the area had not been repaired after plaintiff's accident.