Opinion
13499/2013
06-12-2015
Edgar Moreno, Plaintiff, v. Triangle Equities/Whitestone DMV Company, LLC, Defendant.
This is an action for damages for personal injuries sustained by plaintiff, Edgar Moreno, on December 24, 2012, when he tripped and fell on a raised painted yellow curb and/or sidewalk that was located in front of the pedestrian entrance to the Department of Motor Vehicles (DMV), located at 30-56 Whitestone Expressway, Queens County, New York.
Defendant, Triangle Equities/Whitestone DMV Company, LLC, contends that it is entitled to summary judgment dismissing the complaint against it because plaintiff, in his pre-trial testimony, could not establish what caused his fall and therefore, cannot establish that a dangerous condition existed or that any alleged negligence of the defendant was a proximate cause of his accident. Secondly, defendant claims that the alleged defect is trivial in nature. Third, defendant contends that the plaintiff cannot establish that the defendant had actual or constructive notice of the allegedly dangerous condition.
The plaintiff commenced an action for negligence against the defendant by filing a summons and complaint on July 16, 2013. Issue was joined by service of defendant's verified answer dated August 16, 2013. A Note of Issue was filed by the plaintiff on September 11, 2014. This matter is presently on the calendar of the Trial Scheduling Part on July 22, 2015.
In his verified bill of particulars, the plaintiff alleges that the defendant was negligent in the ownership, operation, maintenance, and control of its sidewalk and curb; in failing to maintain its sidewalk in a reasonably safe condition; in failing to repair the sidewalk and curb; in allowing the sidewalk and curb to remain in a broken, dangerous, and hazardous condition; in creating a trap; in failing to inspect the defective area; in allowing the sidewalk and curb to become and remain in a broken, cracked, detached, unleveled, and hazardous manner; and in violating Chapter 2, Section 7-210 of the New York City Administrative Code requiring property owners to maintain the sidewalk in a reasonably safe condition. Plaintiff alleges that as a result of the trip and fall he sustained, inter alia, a fracture of the left elbow and a tear of the supraspinatus tendon of the left shoulder for which he underwent arthroscopic surgery.
In support of the motion, defendant's counsel, Mark A. Wilgard, Esq., submits his own affirmation, a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; copies of the transcripts of the examinations before trial of plaintiff and of Harvey Bergman, on behalf of defendant; and a photograph of the alleged defect.
In his examination before trial, taken on May 15, 2014, plaintiff, Edgar Moreno, age 49, testified that on the date of the accident, December 24, 2012, he was taking his daughter Sabrina Moreno, to the Department of Motor Vehicles in Whitestone to take her written permit examination. At approximately 11:30 a.m. he parked his car in the parking lot and was walking towards the front entrance. He stated that this accident occurred when he tripped as he was stepping from the parking lot onto the sidewalk in front of the DMV. He stated that he tripped because the curb was uneven and part of it was lower than the sidewalk. He stated that as he was stepping from the asphalt parking lot onto the sidewalk, the front of his right sneaker got stuck in the uneven portion between the sidewalk and the curb and he tripped. He stated that the curb was lower than the sidewalk by two to three inches. He was looking forward when he tripped. He fell forward onto his left side landing in his left elbow and left upper arm. He stated that he was at the DMV one month before and noticed the two inch gap in between the curb and the sidewalk. When asked what caused him to fall he stated that there was a big space, two or three inches between the sidewalk and the curb. After he got up he went inside the DMV to find a supervisor to report the accident. The supervisor told him that the sidewalk is not controlled by the DMV but rather is owned by Triangle Equities whose management office was upstairs. He rang the intercom of Triangle Equities and they sent down a security guard, Mr. Gibson, who was employed by Millennium Protective. The guard did not witness the accident. The plaintiff told Mr. Gibson he tripped and fell in front of the DMV and pointed out the area where he fell. The guard took down the plaintiff's information. Plaintiff required medical attention so he called 911 and an ambulance was sent to the scene. The EMTs suggested he go to the emergency room. When his daughter was finished with the exam he drove himself to the emergency room at New York Queens Hospital.
Harvey Bergman, a property management director for defendant Triangle Equities Management Company, LLC, testified at an examination before trial on September 5, 2014. He testified that Triangle owns the building in Whitestone in which the DMV is located. He states that Triangle Equities is responsible for the maintenance and repair of the exterior grounds of the building as well as maintenance and repair to the structure of the building. He testified that as part of his duties he inspects the building on a weekly basis. He stated that prior to the date of the accident he did not recall seeing a difference in the height of the curb and the sidewalk. He didn't recall if the curb was broken prior to the date of the accident. He stated that prior to the date of the accident he had not received any written complaints with regard to the condition of the exterior of the sidewalk, curb, or parking lot or notifications of anyone tripping in that area. He also stated that as far as he could remember no repairs had been made to the area of the curb where the plaintiff tripped. He states that he saw an incident report from a witness from DMV who saw a customer fighting with his companion and that the individual tripped over his own feet.
Defendant's counsel asserts that defendant is entitled to summary judgment dismissing the complaint on the ground that the plaintiff was not able to identify what he tripped on. Although the plaintiff testified that he fell because there was a height differential between the curb and sidewalk, the defendant asserts that the plaintiff's testimony was that he was looking straight ahead when he fell and he could only speculate that it was the broken curb that caused him to trip. Thus, defendant claims that plaintiff's testimony that the curb was uneven is purely speculative. The defendant claims that since the plaintiff cannot establish what caused him to fall, he cannot establish that any alleged negligence by the defendant was a proximate cause of his accident (citing Golba v City of New York, 27 AD3d 524 [2d Dept. 2006]; Curram v Espositio, 308 AD2d 428 [2d Dept. 2003]; Nelson v City of New York, 7 AD3d 589 [2d Dept. 2004]).
Secondly, defendant claims that there is no proof in the record that the defendant had constructive notice of a dangerous condition. In this regard, defendant claims that there is no proof as to how long the alleged defect was in existence and whether the defendant had a sufficient period of time to discover and remedy it. Counsel claims that there is no proof that would tend to show that defendant had actual or constructive notice that the curb and sidewalk was misleveled to such a degree that it created a dangerous or hazardous condition in fact defendant asserts that the plaintiff was at the DMV on a prior occasion and used the same entrance without incident. Counsel argues that defendant is entitled to summary judgment because the record demonstrates that there was no defect and no prior notice either actual or constructive.
Thirdly, defendant claims that they are entitled to summary judgment dismissing the complaint because the alleged misleveling of the curb and sidewalk is too trivial to be actionable (citing Hymanson v A.L.L. Associates, 300 AD2d 358 [2d Dept. 2002]; Trincere v County of Suffolk, 90 NY2d 976 [1997]).
In opposition to the motion, plaintiff's counsel, Michael J. O'Hagan, Esq., submits an affidavit from plaintiff Edgar Moreno, dated March 21, 2015. In his affidavit, Mr. Moreno states that on May 24, 2012 he drove his daughter to the DMV to take her learner's permit test. He states that as he was stepping up from the parking lot onto the sidewalk in front of the DMV he tripped with his right foot and fell due to the hazardous uneven condition created by the yellow curb which was 2 inches below the sidewalk. He states that he took photographs of the area where he tripped on the date of the accident. He states that immediately after he fell he notified a security guard and pointed out the area where he tripped. He states that he had gone to the DMV a month earlier and observed a 2 inch gap between the curb and the sidewalk. He states that he knew that he was caused to trip due to the uneven condition and he identified the condition to the security guard and photographed the condition the same day. ]
Plaintiff also submits an affidavit from Stanley Fein, a licensed professional engineer, who reviewed photographs of the location, reviewed the deposition testimony of the parties and made an on site inspection on January 7, 2015. He states that based upon his review, the curb was in a defective condition in that the sidewalk was raised approximately two inches above the curb and there was a two inch space between the sidewalk and the curb. He states that in his opinion the injuries sustained by the plaintiff were due to the negligence of the defendant in providing and maintaining a sidewalk and curb that was defective, dangerous, and hazardous in that the uneven condition created an extreme tripping hazard. In addition, he asserts that the two inch height differential was a violation of Section 2-09(f)(5) of the New York City Administrative Code which states that a substantial defect and tripping hazard exists when the vertical height differential between adjacent sidewalk flags is one-half inch or greater. He states that the uneven condition was not trivial and appeared to have been in existence for at least one year prior to the date of the accident.
Counsel for the plaintiff asserts that the plaintiff clearly testified that he tripped when his right foot got caught on an uneven part of the sidewalk and that he observed the condition immediately after the accident. Thus, counsel argues that the branch of the motion seeking summary judgment on the ground that the plaintiff failed to identify the cause of his accident must be denied.
In addition, the plaintiff asserts that the defendant has failed to demonstrate that the defect was trivial in nature. In that respect, counsel asserts that the defendant failed to offer any evidence as to the shape, length, width, or height of the defect. Thus, defendant has not established as a matter of law that the uneven condition involved in the accident was not a substantial defect. Counsel also states, based upon the affidavit of expert Stanley Fein, that there is a question of fact as to whether the defect was trivial. The engineer gave his opinion stating that the two inch height differential involved in the incident was a substantial defect.
Lastly, plaintiff asserts that the motion must be denied as the defendant failed to demonstrate that it did not have constructive notice of the defect. In this respect, the defendant submits the testimony of the plaintiff who stated that he observed the defective condition one month prior to the accident. Further, Mr. Bergman did not recall if he ever observed the uneven condition involved in the accident. Further, the expert stated that in his opinion the defect was in existence for at least one year prior to the accident.
In reply, defendant asserts that Mr. Fein was not identified as an expert witness until after the Note of Issue was filed and as such plaintiff's expert affidavit should not be considered in opposition to the motion(citing Gerardi v Veizon New York, 66 AD3d 960 [2d Dept. 2009]).
Upon review and consideration of the defendant's motion, plaintiff's affirmation in opposition and defendant's reply thereto, this court finds as follows:
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).
A landowner whose property is open to the public is charged with the duty of providing safe means of ingress and egress, and with a duty to maintain his property in a reasonably safe manner. Mr. Bergman testified that as the owner of the building, Triangle Equities was responsible to maintain and repair the sidewalk and all structural and exterior portions of the building. Here, the defendant, property owner, failed to make a prima facie showing that it was entitled to judgment as a matter of law.
With respect to constructive notice, although Mr. Bergman testified with respect to his general inspection practices, he did not provide any testimony as to when he last inspected the subject curb prior to the accident or what it looked like when he last inspected it (see Baines v G & D Ventures, Inc., 64 AD3d 528 [2d Dept. 2009]) and failed to eliminate all questions of fact as to whether the alleged uneven curb where the plaintiff fell existed for a sufficient time for the landlord to have discovered and remedied the condition (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Lawrence v Celtic Holdings, LLC, 85 AD3d 874 [2d Dept. 2011]). Moreover, the defendant submitted a copy of the plaintiff's deposition in which the plaintiff stated that he observed that the curb was broken when visited the DMV one month prior to the accident. Accordingly, this court finds that the defendant failed to establish, prima facie, that it lacked constructive notice of the defective condition that allegedly caused the plaintiff to slip and fall (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
This court finds that the defendant also failed to demonstrate, prima facie, that the plaintiff was not able to identify the cause of his accident. Contrary to the defendant's contention, the plaintiff's claim that he tripped on an uneven portion of the sidewalk was not based upon surmise, conjecture and speculation. Plaintiff never stated that he did not know what caused him to fall. In fact, he clearly stated that his sneaker got caught in the uneven portion between the sidewalk and curb. Further, plaintiff stated that when he looked down he saw that the height differential was two inches. Although he stated that he was looking straight ahead, he also stated that he felt his sneaker get caught in the space. Moreover, immediately after the fall the plaintiff called a security guard and pointed out the dangerous condition to him. Plaintiff also took photographs of the scene. The plaintiff clearly testified that he tripped on sidewalk because it was uneven, and that his shoe was caught because there was a two inch height differential between the two curb and the sidewalk. The facts of this case are distinguishable from the cases cited by the defendant in which the plaintiff did not know or speculated as to the cause of his or her trip and fall. Here the defendant provided specific details as to the hazardous condition, pointed it out immediately after the accident to the guard, and took photographs of the scene after he fell.
In addition, the defendant did not meet its burden of proving that the height differential between the doors was a trivial defect. In determining whether a defect is trivial, the court must examine all of the facts presented, including the "width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury" (Trincere v County of Suffolk, 90 NY2d 976 [2007]). Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and not actionable (Schenpanski v Promise Deli, Inc., 88 AD3d 982 [2d Dept. 2011]). Here, the photographs submitted with the motion papers shows a height differential which appears to more than a trivial defect. Thus, the defendant failed to establish, prima facie, that the alleged defect was trivial as a matter of law. In addition, Mr. Fein stated that in his opinion there was a two inch gap between the curb and the sidewalk. The affidavit of Mr. Fein is admissible for purposes of the motion for summary judgment (see Abreu v Metropolitan Transp. Auth., 117 AD3d 972 [2d Dept. 2014][a party's failure to disclose its experts pursuant to CPLR 3101(d) (1)(I) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment when there is no evidence that the plaintiff's delay in retaining the expert or in serving their expert information was intentional or willful, and prejudicial]; Rivers v Birnbaum, 102 AD3d 26 [2d Dept. 2012]).
Mr. Fein gave his expert opinion that the curb was misleveled and constituted a dangerous condition. Further, he stated that because the differential was two inches it did not constitute a trivial defect. Thus, the expert's affidavit raised a triable issue of fact as to the height of the alleged sidewalk defect, whether the alleged defect was nontrivial, and whether it existed long enough to provide constructive notice of the alleged condition (see Slattery v Sachem N. High Sch., 114 AD3d 927 [2d Dept. 2014]).
Therefore, the defendant did not meet its prima facie burden. In any event, the papers submitted by the plaintiff, including the affidavit of the expert, demonstrates that there are questions of fact as to whether the defect was trivial, and whether the defendant had constructive notice of the defect such that it could have been discovered within a reasonable time and remedied.
Accordingly, based upon the foregoing, it is hereby,
ORDERED, that the motion by defendant, TRIANGLE EQUITIES/WHITESTONE DMV COMPANY, LLC for an order granting summary judgment dismissing the plaintiff's complaint is denied.
Dated: June 12, 2015
Long Island City, NY
____________________
ROBERT J. MCDONALD
J.S.C.