Opinion
05-30-2017
Audrey McCULLOUGH, Plaintiff–Respondent, v. RIVERBAY CORPORATION, Defendant–Appellant.
Malapero & Prisco, LLP, New York (Jeffrey N. Rejan of counsel), for appellant. Mallilo & Grossman, Flushing (Joanna J. Lambridis of counsel), for respondent.
Malapero & Prisco, LLP, New York (Jeffrey N. Rejan of counsel), for appellant.
Mallilo & Grossman, Flushing (Joanna J. Lambridis of counsel), for respondent.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered September 30, 2016, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendant established entitlement to judgment as a matter of law by demonstrating that the defect in the sidewalk that allegedly caused plaintiff to trip and fall was trivial, and that there were no surrounding circumstances that magnified the dangers it posed (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77–78, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015] ). Defendant submitted photographs and measurements, which showed that the height differential between the expansion joint and the sidewalk flags was less than half an inch. The photographs did not depict any jagged edges or any rough, irregular surface, and the expansion joint was not difficult to see or pass over safely on foot, given plaintiff's testimony that the accident occurred on a sunny day and she was the only person traversing the pathway. Plaintiff's testimony that the defect was two-to-four inches high was speculative, since she did not measure the defect (see Vazquez v. JRG Realty Corp., 81 A.D.3d 555, 917 N.Y.S.2d 562 [1st Dept.2011] ).
ACOSTA, P.J., FRIEDMAN, ANDRIAS, WEBBER, GESMER, JJ., concur.