McCabe v. Avalon Bay Cmtys., Inc.

• Decision Date: 19 November 2019
• Docket Number: 10287,Index 156813/16
• Citation: McCabe v. Avalon Bay Cmtys., Inc., 177 A.D.3d 487, 114 N.Y.S.3d 51 (N.Y. App. Div. 2019)
• Parties: Lynn MCCABE, Plaintiff–Appellant, v. AVALON BAY COMMUNITIES, INC., et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

177 A.D.3d 487

114 N.Y.S.3d 51

Lynn MCCABE, Plaintiff–Appellant,

v.AVALON BAY COMMUNITIES, INC., et al., Defendants–Respondents.

10287

Index 156813/16

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

ENTERED: NOVEMBER 19, 2019

Seiden & Kaufman, Carle Place (Steven J. Seiden of counsel), for appellant.

Lewis Brisbois Bisgaard & Smith LLP, New York (Jeremy Pollack of counsel), for respondents.

Gische, J.P., Tom, Kapnick, Kern, Moulton, JJ.

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about December 5, 2018, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff was allegedly injured when she fell forward onto her face and shoulder after tripping on a raised sidewalk flag. In describing the accident, plaintiff testified at her deposition that the tip of her sneaker hit the raised sidewalk like "a brick wall" and "went into the little gap." However, in response to defense counsel's question, she agreed that her "foot" did not go "down inside the gap." In her affidavit opposition to the motion for summary judgment, plaintiff stated, "I don't believe my toe struck the bottom of the gap but I am sure the wide gap enabled my foot to strike more of the raised portion of the sidewalk."

Defendants moved for summary judgment, arguing that the condition was trivial, open and obvious, and not inherently dangerous. Defendants submitted an expert affidavit, photographs, and deposition testimony. The expert concluded that the height differential in the sidewalk caused by the raised flag ranged between 7/16 of an inch and 13/16 of an inch.

In opposition, plaintiff pointed to a map of the property, a budget report, her photographs, and deposition testimony.¹ Plaintiff noted that defendants' maintenance manager had marked blue dots on a map during his inspection of the property months before her accident. The map appears to depict two blue dots in the vicinity of her fall. Plaintiff stressed that the maintenance manager testified that he marked the map with blue dots to indicate the areas where he expected that concrete repairs would be made. Plaintiff also pointed to the property's budget report, which referred to, months before her fall, the "High" priority need to repair large deteriorated sections of "Concrete Walks and Curbs." She further noted that some of her photographs depict a circle of white paint on the raised portion of the sidewalk, which she noticed immediately after her fall. The white circle was important, plaintiff argued, in light of defendants' maintenance manager's testimony that the contractor probably painted the circle to mark the spot so that defendants could look at it or repair it.

Supreme Court erred in concluding that the defect was trivial as a matter of law. When moving for summary judgment, a defendant must make "a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses" ( Hutchinson v. Sheridan Hill House...