Opinion
15740 Index No. 155315/17 Case No. 2021–02346
04-19-2022
Lilia NARVAEZ, Plaintiff–Appellant, v. VORNADO REALTY TRUST et al., Defendants, The Madison Square Garden Company, Defendant–Respondent.
The Altman Law Firm, PLLC, Woodmere (Michael T. Altman of counsel), for appellant. Carol R. Finocchio, Water Mill, for respondent.
The Altman Law Firm, PLLC, Woodmere (Michael T. Altman of counsel), for appellant.
Carol R. Finocchio, Water Mill, for respondent.
Gische, J.P., Webber, Scarpulla, Higgitt, JJ.
Order, Supreme Court, New York County (Verna L. Saunders, J.), entered April 21, 2021, which granted defendant Madison Square Garden's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff Lilia Narvaez alleges she was injured when she tripped and fell on the sidewalk by the entrance to Pennsylvania Station on Eighth Avenue near West 33 rd Street in Manhattan, which was allegedly negligently maintained by defendant Madison Square Garden (MSG).
MSG moved for summary judgment dismissing the complaint. Supreme Court granted the motion finding inter alia that plaintiff failed to adequately identify any defect or condition that caused her to trip, the defect cited by plaintiff in her photographs, was de minimis and plaintiff did not establish that MSG had actual or constructive notice of the condition or rebut MSG's claim that it did not have notice of the alleged dangerous condition.
Plaintiff argues for the first time on appeal that MSG failed to make a prima facie showing of entitlement to summary judgment. Generally, this Court does not review issues raised for the first time on appeal (see Verizon N.Y. Inc. v. City of New York, 159 A.D.3d 443, 444, 69 N.Y.S.3d 486 [1st Dept. 2018] ; Weicht v. City of New York, 148 A.D.3d 551, 552, 49 N.Y.S.3d 680 [1st Dept. 2017] ). Here, however, the question of whether MSG sustained its prima facie burden of demonstrating entitlement to summary judgment, is a determinative legal issue and the record on appeal is sufficient to permit this Court's review (see Augustin v. Augustin, 79 A.D.3d 651, 652, 913 N.Y.S.2d 207 [1st Dept. 2010] ; Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 405, 408, 884 N.Y.S.2d 24 [1st Dept. 2009] ).
Defendant demonstrated as a matter of law that it was not negligent in connection with plaintiff's accident by submitting a photograph, taken by plaintiff's son on the day of the accident and marked Exhibit "E" at plaintiff's deposition, depicting the hole that allegedly caused plaintiff to trip and fall and showing that the hole was physically insignificant and not actionable, even taking into account plaintiff's testimony that it was full of pebbles made of sand (see Lovetere v. Meadowlands Sports Complex, 143 A.D.3d 539, 39 N.Y.S.3d 146 [1st Dept. 2016] ; Arpa v. 245 E. 19 Realty LLC, 188 A.D.3d 479, 135 N.Y.S.3d 99 [1st Dept. 2020] ). Under the circumstances, defendant was not required to demonstrate that it lacked notice of the condition (see generally Sanchez v. State of New York, 99 N.Y.2d 247, 252, 754 N.Y.S.2d 621, 784 N.E.2d 675 [2002] ).
We have considered plaintiff's remaining arguments and find them unavailing.