Opinion
06-13-2024
Jean P. RICHARD, Plaintiff-Appellant, v. 1550 REALTY LLC, et al., Defendants-Respondents.
Harris Keenan & Goldfarb PLLC, New York (Jason Steinberg of counsel), for appellant. Gallo Vitucci Klar LLP, New York (M6-nica Bonilla Romero of counsel), for 1550 Realty LLC and Essen Medical Associates, PC., respondents. Kerley, Walsh, Matera & Cinquemani, P.C., Seaford (Lauren B. Bristol of counsel), for Washington Bridge View Condominium, WBV Apartment Corp. and All Area Realty Services Inc., respondents.
Harris Keenan & Goldfarb PLLC, New York (Jason Steinberg of counsel), for appellant.
Gallo Vitucci Klar LLP, New York (M6-nica Bonilla Romero of counsel), for 1550 Realty LLC and Essen Medical Associates, PC., respondents.
Kerley, Walsh, Matera & Cinquemani, P.C., Seaford (Lauren B. Bristol of counsel), for Washington Bridge View Condominium, WBV Apartment Corp. and All Area Realty Services Inc., respondents.
Oing, J.P., Friedman, Scarpulla, Shulman, Higgitt, JJ.
Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered October 16, 2023, which denied plaintiff’s motion for partial summary Judgment on the issue of liability against defendants, unanimously modified, on the law, to grant plaintiff’s motion for partial summary judgment as to liability as against defendant Washington Bridge View Condominium (the Condo), and otherwise affirmed, without costs.
Plaintiff demonstrated prima facie, through his deposition testimony, photographs and other evidence, that his accident was caused by a hazardous defect in the sidewalk, i.e. a raised sidewalk flag (see Tropper v. Henry St Settlement 190 A.D.3d 623, 624, 141 N.Y.S.3d 33 [1st Dept. 2021]; see also Administrative Code of City of N.Y. § 19-152[a][4]). Although the photographs were taken over a year prior to plaintiff’s accident and in connection with a different accident at the same location, plaintiff’s testimony that they "fairly and accurately" depicted the condition of the sidewalk at the time of his accident rendered the photographs "probative on the issue of whether the defect was dangerous" (Keech v. 30 E. 85th St Co., 173 A.D.3d 645, 646, 103 N.Y.S.3d 81 [1st Dept. 2019]).
The record also demonstrates that the Condo had actual and constructive notice of the sidewalk defect and that the defect existed, unremedied, for a significant period of time prior to plaintiff’s accident.
Plaintiff failed to establish that the other defendants were owners subject to the requirements of the Administrative Code liable for maintenance of the subject sidewalk (see Fayolle v. East W. Manhattan Portfolio L.P., 108 A.D.3d 476, 476, 970 N.Y.S.2d 186 [1st Dept. 2013], appeal dismissed 22 N.Y.3d 979, 979 N.Y.S.2d 551, 2 N.E.3d 918 [2013], lv dismissed in part denied in part 24 N.Y.3d 1079, 1 N.Y.S.3d 3, 25 N.E.3d 340 [2014]; Araujo v. Mercer Square Owners Corp., 95 A.D.3d 624, 624, 944 N.Y.S.2d 126 [1st Dept. 2012]).
In opposition to plaintiff’s prima facie showing, the Condo failed to raise a triable issue of fact, through the submission of admissible evidence, as to whether the defect was non-actionable (see Tropper, 190 A.D.3d at 624-625, 141 N.Y.S.3d 33; see also Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]).