SHAPIRO v. 89TH STREET DEVELOPMENT COMPANY LLC (2023)

Order, Supreme Court, New York County (Louis L. Nock, J.), entered on or about February 27, 2023, which, to the extent appealed from as limited by the briefs, denied defendant 89 th Street Development Company LLC's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant was not entitled to dismissal of the complaint on the basis that the alleged defect on the sidewalk abutting its property was not the cause of plaintiff's fall (see Figueroa v. City of New York, 126 A.D.3d 438, 440, 5 N.Y.S.3d 62 [1st Dept. 2015]).  In contrast to the cases defendant relies upon (see Glueck v. Starbucks Corp., 173 A.D.3d 450, 451, 102 N.Y.S.3d 578 [1st Dept. 2019];  Siegel v. City of New York, 86 A.D.3d 452, 454, 928 N.Y.S.2d 1 [1st Dept. 2011]), plaintiff consistently and unequivocally testified that she tripped on an uneven sidewalk abutting 1577 Third Avenue, and she immediately realized that a raised sidewalk flag extending about an inch above its adjoining flag had caused her fall.  At her deposition, plaintiff then pinpointed the alleged defect by indicating its location in photographs of the sidewalk, which depicted a raised sidewalk flag.

Defendant also was not entitled to summary judgment on the basis that the alleged defect was trivial (compare Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015]) with Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997].  In light of plaintiff's testimony, photos of the accident location, and the conflicting expert affidavits on the height differential of the sidewalk flags (see Bradley v. Soundview Healthcenter, 4 A.D.3d 194, 194, 772 N.Y.S.2d 56 [1st Dept. 2004]), the court properly concluded that triable issues of fact remained as to whether the defect was trivial (see Narvaez v. 2914 Third Ave. Bronx, LLC, 88 A.D.3d 500, 501, 930 N.Y.S.2d 561 [1st Dept. 2011]).  In particular, while defendant's expert testified that the height difference between the two sidewalk flags was one quarter of an inch and was trivial, plaintiff's expert concluded that the height difference was three quarters of an inch and presented a tripping hazard.  Moreover, defendant waived any objection to plaintiff's expert's affidavit as untimely or speculative because he failed to object to its consideration in connection with the motion for summary judgment (see Akamnonu v. Rodriguez, 12 A.D.3d 187, 187, 784 N.Y.S.2d 516 [1st Dept. 2004]).

We have considered defendant's remaining arguments and find them unavailing.