Opinion
Index No. 156353/2020 Motion Seq. No. 001
10-03-2023
GLADYS PICKETT, Plaintiff, v. SV-B OWNERS LLC, SV-B LIHTC LLC, ACACIA SENDERO VERDE II HOUSING DEVELOPMENT FUND COMPANY, INC., L&M BUILDER'S GROUP, LLC, L&M DEVELOPMENT PARTNERS, INC., OLIVIERO CONTRACTING INC. Defendant.
Unpublished Opinion
MOTION DATE 03/20/2023
DECISION + ORDER ON MOTION
FRANK P. NERVO, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 60, 61, 62, 63, 64, 65, 66, 67 were read on this motion to/for JUDGMENT - SUMMARY .
Plaintiff moves for summary judgment on the issue of liability. Defendants oppose and cross-move for summary judgment, dismissing the action.
The standard by which the Court analyzes the instant motion is well established. On a motion for summary judgment, the burden rests with the moving party to make a prima facie showing they are entitled to judgment as a matter of law and demonstrate the absence of any material issues of fact (Friends of Thayer Lake, LLC v. Brown, 27 N.Y.3d 1039 [2016]). Once met, the burden shifts to the opposing party to submit admissible evidence to create a question of fact requiring trial (Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75 [1st Dept 2013]). However, a "feigned issue of fact" will not defeat summary judgment (Red Zone LLC v. Cadwalader, Wickersham & Taft LLP, 27 N.Y.3d 1048 [2016]). A failure to make a prima facie showing requires the Court to deny the motion, regardless of the sufficiency of opposing papers (Alverez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; see also JMD Holding Corp. v. Congress Financial Corp, 4 N.Y.3d 373 [2005]).
Here, the procedural posture of these applications, namely the filing of competing motions for summary judgment, is, at minimum, a strong indicator that obvious issues of fact preclude summary judgment. Plaintiff alleges she was caused to trip and fall due to a broken sidewalk. Defendants allege that any defect is trivial and that, with respect to the contractor defendants, was not caused by them. Resolution of these claims is inappropriate on summary judgment and the instant applications are exactly the type of perfunctory summary judgment motions that this Court admonished against as substantially wasting judicial resources (see Marrero v. Gotham Plaza, 2023 NY Slip OP 31995[U] [Nervo, J.] [Sup Ct, NY Cty 2023]; see also Andrew Denney, New York Lawyers 'Perfunctory' Filing of Summary Judgment Motions Wastes Court Resources Judge Says, New York Law Journal [June 15, 2023]).
As relevant here, "the question of whether or not a dangerous or defective condition exists depends on the peculiar facts and circumstances of each case and is a question of fact for the jury and liability will result where the condition is found to be hazardous to pedestrians" (Shechtman v. Lappin, 161 A.D.2d 118 [1st Dept 1990]; see also Trincere v. County of Suffolk, 90 N.Y.2d 976 [1997]). The size of the alleged defect, whether significant as plaintiff alleges, or trivial as defendants allege, is not a concern for this Court on summary judgment ("Dimensions of a sidewalk defect are not controlling on the question of liability" Wilson v. Jaybro Realty & Dev. Co., 289 NY 410 [1943]).
Finally, the Court notes that issues surrounding the admissibility and/or evidentiary weight of plaintiffs photographs of the alleged condition likewise preclude summary adjudication. As relevant here, defendants demanded metadata and digital copies of the photographs relied upon by plaintiff. However, plaintiff did not substantively respond to the demand. Given that plaintiff averred she could not substantively respond to the demand, the parties entered into a stipulation, which was so-ordered by the Court, providing that plaintiff had no knowledge of who took the photos, when the photos were taken, or how they were taken (see May 24, 2022 stipulation; NYSCEF Doc. No. 35 at ¶ 1 "... plaintiffs counsel came into possession of these photographs on November 11, 2019, but do not know who tool these photographs, when they were taken or how they were taken"). Now, on this motion, plaintiff provides an investigator's affidavit of authentication averring, inter alia, that the investigator took certain photographs 12 days following the accident (NYSCEF Doc. No. 53). It is unclear, from the motion and cross-motion, whether the so-ordered stipulation and investigator's affidavit relate to the same set of photographs - the so-ordered stipulation references page numbers of plaintiff s bill of particulars, however, notably absent from the record is any bill of particulars. All parties having moved for summary judgment, it is sufficient for this Court to find the photographs insufficient for any party to meet their burden on these motions, given the forgoing.
Demands for bills of particulars can be found in the record at Doc. Nos. 13 and 21; however, the responsive bill of particulars is not filed to the record.
Accordingly, it is
ORDERED that plaintiffs motion for summary judgment is denied; and it is further
ORDERED that defendants' cross-motion for summary judgment is denied.