MCGRANE MUNGO v. [And a Third–Party Action] (2025)

Order, Supreme Court, New York County (Mary V. Rosado, J.), entered on or about October 1, 2024, which, to the extent appealed from, denied the motion of defendants Dag Hammarskjold Tower Condominium, Board of Managers of Dag Hammarskjold Tower Condominium, and Douglas Elliman Property Management (collectively, defendants) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff alleges that she tripped and fell on misleveled sidewalk flags in front of defendants’ property.  Defendants established prima facie that the alleged defect was trivial through their submission of a photo exchanged by plaintiff during discovery, which depicted the defect and a tape measure apparently measuring the defect as less than half an inch in height (see e.g. Boynton v. Haru Sake Bar, 107 A.D.3d 445, 445, 968 N.Y.S.2d 430 [1st Dept. 2013]).  Contrary to plaintiff's argument and the motion court's conclusion, defendants were not required to have an expert opine as to the measurement depicted in the photo (cf.  Lansen v. SL Green Realty Corp., 103 A.D.3d 521, 522, 962 N.Y.S.2d 44 [1st Dept. 2013]).  Defendants also established prima facie their lack of notice of the alleged defect through their resident manager's testimony that he inspected the area daily, never noticed the condition, and never received any complaints about it (see e.g. Gomez v. Congregation K'Hal Adath Jeshurun, Inc., 104 A.D.3d 456, 456, 961 N.Y.S.2d 100 [1st Dept. 2013]).

In opposition, plaintiff raised an issue of fact as to the triviality of the defect through her expert engineer's affidavit, which was supported by photos that he took and included in his report, measuring the defect to be greater than half an inch high and, therefore, in violation of Administrative Code of the City of New York § 19–152(a)(4) and Rules of City of New York Department of Transportation (34 RCNY) § 2–09(f)(5)(iv).  Violations of that ordinance and rule, respectively, are “not per se non-trivial, and therefore actionable as a matter of law,” but they are “one factor to consider when deciding the issue of triviality” (Trinidad v. Catsimatidis, 190 A.D.3d 444, 445, 140 N.Y.S.3d 482 [1st Dept. 2021];  see e.g. Barrett v. Sacks & Sacks, LLP, 237 A.D.3d 636, 637, 234 N.Y.S.3d 145 [1st Dept. 2025];  see also e.g. D'Amico v. Archdiocese of N.Y., 95 A.D.3d 601, 601, 944 N.Y.S.2d 106 [1st Dept. 2012]).  Plaintiff also raised an issue of fact as to notice based on her expert engineer's opinion that the sidewalk was in a defective condition for a lengthy period of time (see e.g. Gomez, 104 A.D.3d at 456–457, 961 N.Y.S.2d 100;  Tese–Milner v. 30 E. 85th St. Co., 60 A.D.3d 458, 458–459, 873 N.Y.S.2d 905 [1st Dept. 2009]).  Defendants’ arguments that plaintiff's expert engineer did not take his measurements properly, and that he did not account for the photo on which defendants rely, go to the weight to be afforded to the engineer's opinions, which must be assessed by the factfinder, and not by the court at the summary judgment stage.

We have considered defendants’ remaining arguments and find them unavailing.