ROBINSON v. REALTY GROUP INC (2023)

The following numbered papers were read on this motion:

NYSCEF Document Numbers 154-168, 169-190, 191-194.

Upon the foregoing papers,¹

It is hereby ORDERED as follows:

Defendant's motion for summary judgment is DENIED. Plaintiff's cross-motion in opposition to Defendants motion and further seeking summary judgment is, similarly, DENIED. “As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [emphasis added]). Defendant argues that Defendant is entitled to summary judgment due to Plaintiff's purported inability to identify the exact cause and location of the accident. In support of Defendant's contention, Defendant cites to Baldasano v Long Is. Univ., 143 AD3d 933 [2d Dept 2016] and argues that the Plaintiff is required to identify the exact location of the subject accident. Defendant relies on Plaintiff's inability to identify the relative location of the incident to nearby landmarks as evidence that Plaintiff cannot identify the cause of Plaintiff's fall. However, Defendants’ arguments are misplaced. That decision held that “the defendants failed to establish, prima facie, that the injured plaintiff did not know what had caused her to fall. In support of their motion, the Defendants submitted a transcript of the injured plaintiff's deposition, at which she clearly identified the raised condition of the sidewalk as the alleged cause of her fall,” (Baldasano, 143 AD3d 933). Here, Plaintiff's affidavit and deposition transcript clearly establish that the plaintiff alleges that the cause of Plaintiff's fall was an unleveled sidewalk. Accordingly, Defendant has failed to establish that Plaintiff could not identify the cause of Plaintiff's accident, and Defendant's motion for summary judgment must be denied.

In opposition, Plaintiff contends that Plaintiff is able to identify the sidewalk that caused Plaintiff's accident and, further, that Defendant had notice of the sidewalk defect. “It is well settled that an owner of premises cannot be held liable for injuries caused by an allegedly defective condition unless the plaintiff establishes that it either created or had actual or constructive notice of the condition,” (Lee v Bethel First Pentecostal Church of Am., Inc., 304 AD2d 798, 799 [2d Dept 2003]). “Generally, to establish constructive notice, a defect must be visible and apparent, and it must exist for a sufficient length of time prior to an accident to permit a defendant's employees to discover and remedy it,” (Utica Mut. Ins. Co. v Brooklyn Navy Yard Dev. Corp., 131 AD3d 470, 472 [2d Dept 2015]). “Photographs which accurately depict an area in which a plaintiff fell may create an issue of fact as to constructive notice of the defect which is best submitted and evaluated by the jury,” (Zavaro v Westbury Prop. Inv. Co., 244 AD2d 547, 548 [2d Dept 1997]). Here, Plaintiff has provided several images of the alleged defect in the pavement. One such image was, purportedly, taken near the time of the subject accident, while the remaining images were taken from Google Streetview in 2013 and 2017. The Google Streetview images appear to show the sidewalk in disrepair. However, Plaintiff has failed to provide any evidence establishing that in the time between the images were taken, the sidewalk was not repaired. It remains possible that the raised sidewalk that caused Plaintiff to fall was a perennial issue that reemerged after a repair had been done to the sidewalk rather than a consistent issue that had never been repaired.

Furthermore, while Plaintiff has identified that the cause of Plaintiff's injury was a raised sidewalk the location of the defect does raise an issue of fact and credibility. “The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist,” (Kolivas v Kirchoff, 14 AD3d 493, 493 [2d Dept 2005]). “Additionally, in determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmovant,” (Pearson v Dix McBride, LLC, 63 AD3d 895, 895 [2d Dept 2009]). Plaintiff here has repeatedly identified the defect in the sidewalk as the cause of Plaintiff's injuries. However, as noted previously, when Plaintiff was asked about: (1) whether Plaintiff could identify the intersecting cross-street, address, or location; (2) whether Plaintiff has returned to the subject location; and (3) whether Plaintiff could pinpoint the location of the defect in relativity to other buildings, businesses, or landmarks on the same street, Plaintiff responded negatively. Thus, an issue of fact and credibility exists, barring summary judgment.

FOOTNOTES

1.   Counsel are reminded of the provisions requiring that an opinion or decision be included in the record on appeal should one be taken (see CPLR 5526; 22 NYCRR 1250.7 [b] [4], [d] [1] [iii]). Transcripts may be procured from the court reporter (see Matter of Lewandowski v Office of Ct. Admin., 173 Misc 2d 335 [Sup Ct, Albany County 1997]).

Aaron D. Maslow, J.