Fayolle v. E. W. Manhattan Portfolio L.P.

• Decision Date: 23 July 2013
• Citation: 108 A.D.3d 476,2013 N.Y. Slip Op. 05431,970 N.Y.S.2d 186
• Parties: John FAYOLLE, Plaintiff–Appellant, v. EAST WEST MANHATTAN PORTFOLIO L.P., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

108 A.D.3d 476

970 N.Y.S.2d 186

2013 N.Y. Slip Op. 05431

John FAYOLLE, Plaintiff–Appellant,

v.EAST WEST MANHATTAN PORTFOLIO L.P., et al., Defendants–Respondents.

Supreme Court, Appellate Division, First Department, New York.

July 23, 2013.

Padilla & Associates, PLLC, New York (Jeffrey W. Padilla of counsel), for appellant.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for East West Manhattan Portfolio L.P., respondent.

Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn of counsel), for Gallery House Condominium and John J. Grogan & Associates, Inc., respondents.

TOM, J.P., FRIEDMAN, FREEDMAN, FEINMAN, JJ.

Order, Supreme Court, New York County (Debra A. James, J.), entered August 7, 2012, which denied plaintiff's motion for summary judgment, and granted defendants' motions for summary judgment dismissing the complaint, affirmed, without costs.

Plaintiff seeks damages for injuries sustained when he tripped and fell on a sidewalk located in front of a condominium building owned by defendant Gallery House Condominium. The court properly dismissed the action against defendant East West Manhattan Portfolio L.P., the owner of the first floor commercial unit, because it is not an “owner” within the meaning of Administrative Code of the City of New York § 7–210 and owed no other duty to maintain the sidewalk ( see Araujo v. Mercer Sq. Owners Corp., 95 A.D.3d 624, 624, 944 N.Y.S.2d 126 [1st Dept. 2012] ). Moreover, the condominium declaration and bylaws limit the commercial unit owner's interest to the interior of the building and place responsibility for the common elements with the condominium's board, which maintained the sidewalk.

The court also properly found that the alleged defect—a three-quarter-inch expansion joint, which was not filled to grade level, coupled with a one-fourth-inch height differential between slabs—was “trivial” and therefore nonactionable as a matter of law ( Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] ). Unlike in Young v. City of New York, 250 A.D.2d 383, 673 N.Y.S.2d 378 [1st Dept. 1998], the defect here is not alleged to have run along the full width of the sidewalk.

Plaintiff fails to support its claim that statutorily—defined substantial defects exist and fails to raise a triable issue as to the existence of an actionable defect. Plaintiff's expert's opinion that the expansion joint's width exceeded Department of Transportation (DOT) specifications relies on a specification that applies to construction. Given the absence of any evidence that the sidewalk, which was constructed more than five years before the expert's inspection, was constructed with this defect, the DOT specification cannot serve as the basis for imposing liability. Further, while plaintiff maintains that the failure to fill the expansion joint grade constitutes a violation of a DOT specification, he fails to identify the DOT specification claimed to have been violated by this failure.

All concur except FEINMAN, J. who dissents in part in a memorandum as follows:

FEINMAN, J. (dissenting in part).

I agree with the majority that the motion court properly dismissed the action as against defendant East West Manhattan Portfolio L.P. because, unlike the abutting landowners, defendants Gallery House Condominium and John J. Grogan & Associates, Inc. (together the Gallery House defendants), it had no duty to maintain or repair the sidewalk where plaintiff's accident occurred. However, in my view, the motion court erred in granting summary judgment and dismissal of the action as against the Gallery House defendants on the ground that the sidewalk defects at issue were “trivial” as a matter of law. If the motion court was correct as to this point, then property owners in New York City may ignore the law regarding construction and maintenance of their abutting sidewalks without consequence. The motion court's approach, approved by the majority, reduces safety design specifications to mere recommendations. Accordingly, I respectfully dissent in part.

In March 2008, plaintiff contends, he was caused to trip and fall and sustain injury when the “outside of [his] sneaker got caught in the crack” in front of the condominium building owned by defendant Gallery House Condominium. The “crack” is a sidewalk expansion joint. The sidewalk was constructed (i.e., repaved) by the Gallery House defendants in 2003 or 2004. In 2007, former third-party defendant Etna Contracting, Inc. inspected the sidewalk and proposed to replace missing caulking in the sidewalk's expansion joints. The Gallery House defendants rejected the proposal, and never replaced the caulking.

Plaintiff moved for summary judgment on the ground that the sidewalk expansion joint in which he tripped constituted a defective and dangerous condition. He submitted an affidavit and notarized report by Michael Kravitz, a licensed professional engineer, who inspected the sidewalk in March 2010 and found the following defects, which he opined were created at the time of construction: (1) the width of the expansion joint measured three-quarters of an inch; (2) the expansion joint lacked sufficient caulking such that there was a one-inch-deep crevice between flags; and (3) a height differential of one-quarter inch existed between the adjacent sidewalk flags. These conditions constituted violations of sections 7–210 and 19–113 of the Administrative Code of the City of New York and section 2–09 of Title 34 of the Rules of City of New York Department of Transportation (34 RCNY 2–09), as well as New York City Department of Transportation Specifications and, according to Kravitz, are a “substantial defect.” Although plaintiff also submitted photographs of the sidewalk allegedly taken shortly after his 2008 accident, defendants contend, and it was conceded at oral argument, that they should not have been considered because they were unauthenticated.

The Gallery House defendants also moved for summary judgment seeking dismissal of the complaint as against them on the ground that the allegedly missing caulking was “trivial” as a matter of law. In support of their motion and in opposition to plaintiff's motion, the Gallery House defendants submitted an affidavit from John Natoli, a licensed engineer who inspected the site in July 2010. Natoli found that the width of the expansion joint was seven-eighths of an inch at its widest, the depth of the caulking ranged between three-eighths to one-half of an inch, and the height differences were “less than one-half inch.” Natoli's report explained that the “depth of the expansion joint will not remain static unless filled periodically with caulking.”

The motion court granted the Gallery House defendants' motion, finding no questionof fact as to the trivial nature of the alleged defect and that any difference in the width of the expansion joints was de minimis. The court denied plaintiff's motion, ruling that he had not established that the width of the expansion joints was required by statute or ordinance to be “an undeviating 1/4 inch,” and held that the one-quarter-inch variance between sidewalk flags, as found by plaintiff's engineer, was “as a matter of law, too trivial to be actionable.” Plaintiff has appealed from both the denial of his summary judgment motion and the grant of defendants' summary judgment motion.

The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985];Ostrov v. Rozbruch, 91 A.D.3d 147, 152, 936 N.Y.S.2d 31 [1st Dept. 2012] ). In deciding the motion, the court will draw all reasonable inferences in favor of the nonmoving party ( Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012]; Sosa v. 46th St. Dev. LLC, 101 A.D.3d 490, 492, 955 N.Y.S.2d 589 [1st Dept. 2012] ). If the moving party fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied ( Vega, 18 N.Y.3d at 503, 942 N.Y.S.2d 13, 965 N.E.2d 240).

There is no rule that a sidewalk...