KEECH v. 30 (2019)

Order, Supreme Court, New York County (James E. d'Auguste, J.), entered October 4, 2018, which denied the motion of defendants 30 East 85th Street Condominium Associates and Wallack Management for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

Defendants failed to establish prima facie entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when she tripped and fell over a hole or indentation in the sidewalk abutting defendants' building.  Defendants failed to show that the defect, which was about three inches wide and one-foot long, was open, obvious, and not inherently dangerous (see Westbrook v. WR Activities–Cabrera Mkts., 5 A.D.3d 69, 72, 773 N.Y.S.2d 38 [1st Dept. 2004] ), particularly since the accident occurred at night, when it was dark outside (see Soto v. 2780 Realty Co., LLC, 114 A.D.3d 503, 980 N.Y.S.2d 93 [1st Dept. 2014];  see also Mauriello v. Port Auth. of N.Y. & N.J., 8 A.D.3d 200, 779 N.Y.S.2d 199 [1st Dept. 2004] ).

Defendants also failed to show that the defect, as described by plaintiff and shown in the photographs, was trivial as a matter of law (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997];  Tese–Milner v. 30 E. 85th St. Co., 60 A.D.3d 458, 873 N.Y.S.2d 905 [1st Dept. 2009] ).  Furthermore, the defect was obscured from plaintiff's view due to the poor lighting conditions along the sidewalk at the time of her accident (see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 78, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015] ).

We note that the Tese–Milner decision involved a pedestrian fall at the same location approximately ten years earlier.  The evidence plaintiff submitted from that case in opposition to defendants' motion is probative on the issue of whether the defect was dangerous, given that plaintiff averred that the defect depicted in the photographs from that case appeared to be the same as the defect that caused her accident (see e.g. Daniels v. City of New York, 291 A.D.2d 260, 737 N.Y.S.2d 598 [1st Dept. 2002];  Martin v. Our Lady of Wisdom Regional Sch., 151 A.D.3d 838, 54 N.Y.S.3d 692 [2d Dept. 2017] ).  We have considered defendants' remaining arguments and find them unavailing.