Scuteri v. 7318 13th Ave. Corp.

• Decision Date: 27 April 2016
• Docket Number: 502333/13
• Parties: Joanne SCUTERI, Plaintiff, v. 7318 13TH AVE. CORP., Dr. Joseph Caruana, et al., Defendants.
• Court: New York Supreme Court

52 Misc.3d 391

32 N.Y.S.3d 447

2016 N.Y. Slip Op. 26133

Joanne SCUTERI, Plaintiff,

v.7318 13TH AVE. CORP., Dr. Joseph Caruana, et al., Defendants.

502333/13

Supreme Court, Kings County, New York.

April 27, 2016.

Calcagno & Associates PLLC, Staten Island.

Jacobson & Schwartz LLP, Jericho, Counsel for defendants.

DEBRA SILBER

, J.

Defendants, the property owners on February 2, 2012, the date of the plaintiff's accident (Joseph Caruana and Laura Caruana) and the commercial tenant at the property (Dr. Joseph A. Caruana Medical P.C.), all move for summary judgment. Although the court indicated on the record at oral argument that movants were seemingly entitled to summary judgment, the court later discovered, while in the process of writing the decision, that the “ facts” stated on the record by counsel as to which defendants owned the property on the date of plaintiff's accident were incorrect, and so, for the reasons stated herein, grants summary judgment to defendant Dr. Joseph A. Caruana Medical P.C. and denies summary judgment as to defendants Joseph Caruana and Laura Caruana.

Previously, the City of New York was dismissed as a party defendant pursuant to NYC Administrative Code § 7–210, and the other named defendants have not answered and no default has been taken against them. Thus, this action has been abandoned as to 7318 13th Avenue Corp.¹ , Caruana and Manna and the Family Medical Center. CPLR § 3215

requires a plaintiff to enter a default judgment within one year after the default occurs.

Movants aver that, if there was a defect in the sidewalk, it was trivial, and that for this reason, their motion should be granted. The court finds that because this accident took place in New York City, counsel's analysis is erroneous as the New York City Administrative Code prevents the court from reaching the conclusion urged by movants.

Generally, whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury unless the defect is demonstrated to be trivial as a matter of law. See, Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997]

; Fisher v. JRMR Realty Corp., 63 A.D.3d 677, 880 N.Y.S.2d 187 [2nd Dept.2009] ; DeLaRosa v. City of New York, 61 A.D.3d 813, 877 N.Y.S.2d 439 [2nd Dept.2009]. Property owners may not be held liable for trivial defects. See, Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; DeLaRosa v. City of New York, 61 A.D.3d 813, 877 N.Y.S.2d 439 ; Shiles v. Carillon Nursing & Rehabilitation Ctr., LLC, 54 A.D.3d 746, 864 N.Y.S.2d 439 [2nd Dept.2008].

In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect, along with the time, place and circumstances of the accident. “Circumstances” has been interpreted to include, but not be limited to, the sufficiency of the lighting, the existence of rain, snow, leaves or debris. Trincere v. County of Suffolk, 90 N.Y.2d 976, 978, 665 N.Y.S.2d 615, 688 N.E.2d 489

, quoting Caldwell v. Village of Island Park, 304 N.Y. 268, 274, 107 N.E.2d 441 [1952] ; Fontana v. Winery, 84 A.D.3d 863, 864–865, 923 N.Y.S.2d 594 [2nd Dept.2011]. There is no “minimum dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable. See, Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; Ricker v. Board of Educ. of Town of Hyde Park, 61 A.D.3d 735, 876 N.Y.S.2d 658 [2nd Dept.2009].

The Court of Appeals has further clarified its intent with regard to the “trivial defect doctrine” in the recently decided Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015]

, which addressed three different cases appealed on the issue of alleged trivial defects, stating “Trincere stands for the proposition that a defendant cannot use the trivial defect doctrine to prevail on a summary judgment motion solely on the basis of the dimensions of an alleged defect, and the reviewing court is obliged to consider all the facts and circumstances presented when it decides the motion ... in deciding whether a defendant has met its burden of showing prima facie triviality, a court must—except in unusual circumstances not present here—avoid interjecting the question of whether the plaintiff might have avoided the accident simply by placing his feet elsewhere.” Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 84, 19 N.Y.S.3d 802, 41 N.E.3d 766

.

Defendants herein have not made a prima facie showing that, as a matter of law, the allegedly defective condition was merely a non-actionable trivial defect. See, e.g., DePascale v. E & A Constr. Corp., 74 A.D.3d 1128, 1131, 904 N.Y.S.2d 109 [2nd Dept.2010]

(one-quarter inch is trivial); Lopez v. New York City Hous. Auth., 245 A.D.2d 273, 274, 666 N.Y.S.2d 21 [2nd Dept.1997]. A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial 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 somehow increase the risk it poses. Only then does the burden shift to the plaintiff to establish an issue of fact. Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 79, 19 N.Y.S.3d 802, 41 N.E.3d 766.

What must be stated in unambiguous terms is that it is not possible to make a prima facie case for dismissal in New York City on the grounds that a sidewalk defect is trivial when the New York City Administrative Code states that the very same condition is a “substantial defect” which permits the City to issue a violation to the property owner, and then, if it is not promptly corrected, the City may repair the condition and bill the property owner.

With regard to the duty to repair, § 19–152(a)

provides that a property owner is required to repair “a defective sidewalk flag in front of or abutting such property,” which “contains a substantial defect.” A substantial defect is defined to include a height differential between sidewalk flags of one half inch or more.

Defendants herein do not provide any evidence that the alleged height differential between the sidewalk flags where plaintiff tripped is less than one half of an inch and thus not a violation of New York City Administrative Code § 19–152

. See, Rossy v. Miracle Pentecostal Church, 2012 N.Y. Slip Op. 30216(U), 2012 WL 368242 [Sup.Ct., N.Y. Co.2012]. In fact, the defendants' claims adjuster provides an affidavit (signed and notarized in Nassau County) which states that the sidewalk flag is raised “less than one inch,” and he provides a photograph of the raised flag next to a ruler, which, while fuzzy, indicates that the sidewalk flag was raised almost one inch from the adjacent one. This does not establish that the alleged defect is trivial in New York City as a matter of law. See, e.g., Cohen v. Tuneway Co., 35 A.D.3d 340, 341, 825 N.Y.S.2d 268 [2nd Dept.2006] ; Corrado v. City of New York, 6 A.D.3d 380, 380–381, 773 N.Y.S.2d 894 [2nd Dept.2004]

. The plaintiff provides a letter from an engineer which was not submitted in admissible (affidavit) form, so it could not be considered.

The evidence in the instant case is that, pursuant to plaintiff's EBT testimony, it was a bright sunny day, and her vision was not obstructed, but the evidence also reveals (photo) a defect which ran from the tree well across virtually the entire width of the sidewalk. This was a defect which was “difficult for a pedestrian to ... pass over safely on foot in light of the surrounding circumstances.” Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 80, 19 N.Y.S.3d 802, 41 N.E.3d 766

.

In conclusion, the photographs, the claims adjuster's affidavit and plaintiff's deposition testimony, are insufficient to demonstrate as a matter of law that the alleged defect is trivial and therefore not actionable. See, Cardona– Torres v. City of New York, 109 A.D.3d 862, 972 N.Y.S.2d 582 [2nd Dept.2012]

; Brenner v. Herricks Union Free Sch. Dist., 106 A.D.3d 766, 767, 964 N.Y.S.2d 605 [2nd Dept.2013] ; Devlin v. Ikram, 103 A.D.3d 682, 962 N.Y.S.2d 148 [2nd Dept.2013] ; Guidone v. Town of Hempstead, 94 A.D.3d 1054, 1055, 942 N.Y.S.2d 632 [2nd Dept.2012] ; Rogers v. 575 Broadway Assoc., L.P., 92 A.D.3d 857, 858, 939 N.Y.S.2d 517 [2nd Dept.2012] ; Perez v. 655 Montauk, LLC, 81 A.D.3d 619, 620, 916 N.Y.S.2d 137 [2nd Dept.2011]

.

As defendants have not made out a prima facie case for dismissal, the court is not required to consider the sufficiency of the plaintiff's papers in opposition.

To be clear, it has long been the law in this State that whether a dangerous or defective condition exists is properly a question of fact for the jury unless the alleged defect is trivial as a matter of law. See Loughran v. City of New York, 298 N.Y. 320, 83 N.E.2d 136 (1948)

; Cardona–

Torres v. City of New York, 109 A.D.3d 862, 972 N.Y.S.2d 582 ; Milewski v. Washington Mut., Inc., 88 A.D.3d 853, 855, 931 N.Y.S.2d 336 [2nd Dept.2011] ; Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489.

Section 7–210 of the New York City Administrative Code provides in pertinent part:

“It shall be the duty of the owner of real property abutting any sidewalk ... to maintain such sidewalk in a reasonably safe condition. Notwithstanding any other provision of law, the owner of real property abutting any sidewalk ... shall be liable for any injury to property or personal injury, including death, proximately caused by the failure of such owner to maintain such sidewalk in a reasonably safe condition. Failure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to, the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags and

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