Elizabeth Vargas, Plaintiff, v. NEW DUMBO BUILDING SUPPLY INC (2026)

The following papers efiled on NYSCEF were used on this motion: 95-102, 117, 119-136, 138.

Upon the foregoing papers, having heard oral argument  ¹ , and due deliberation having been had, the within motion by Plaintiff seeking summary judgment on the issue of liability is determined as follows.

Background

Plaintiff Elizabeth Vargas commenced this action seeking damages for personal injuries allegedly sustained in a sidewalk trip-and-fall accident that occurred on August 28, 2021, adjacent to 171 York Street, Brooklyn, New York. Plaintiff alleges that she tripped and fell due to a broken, cracked, defective, uneven, and/or unleveled portion of the sidewalk, causing injuries. At the time of the accident, the subject premises were owned by defendant Great Front Realty Corp. ("Great Front"), which owed a duty to maintain the abutting sidewalk pursuant to Administrative Code § 7-210. Notably, the subject premises had been leased to New Dumbo Building Supply, Inc. ("New Dumbo"), successor-in-interest to New Star Building Supply, Inc., pursuant to a lease agreement that required the tenant to maintain and repair the premises, including the adjacent sidewalk. (See generally NY St Cts Elec Filing [NYSCEF] Doc Nos. 90, 98.)

Great Front disputes whether the photographs in support of plaintiff's motion accurately depict the condition of the sidewalk on the date of the accident, citing inconsistencies between plaintiff's deposition testimony, written statement, and the photographs' metadata. They dispute whether the condition depicted constituted a dangerous sidewalk defect and whether Great Front breached its duty to maintain the sidewalk in a reasonably safe condition. Lastly, the parties dispute whether Great Front had a nondelegable duty pursuant to New York City Administrative Code § 7-210.

Movant's Contentions

Plaintiff argues that she has established her entitlement to judgment as a matter of law on the issue of liability. Plaintiff contends that she was caused to trip and fall due to a broken, uneven, and defective sidewalk adjacent to the subject premises. Plaintiff further argues that Great Front, as the owner of the property, owed a nondelegable duty to maintain the sidewalk in a reasonably safe condition pursuant to Administrative Code § 7-210. Plaintiff contends that the photographic evidence establishes the existence of a dangerous sidewalk defect and that Great Front failed to maintain and repair the condition. New Dumbo's witness testified that the small cracks did not seem dangerous, having seen it. Plaintiff further argues that any lease provision requiring New Dumbo to maintain the sidewalk does not relieve Great Front of its statutory obligations as the abutting property owner. Accordingly, plaintiff asserts that no triable issue of fact exists regarding Great Front's liability and that partial summary judgment should be granted in her favor. (See generally NYSEF Doc Nos. 96, 137.)

Opposition

Great Front opposes plaintiff's motion and argues that numerous issues of fact preclude summary judgment. Great Front contends that plaintiff has failed to establish, as a matter of law, that a dangerous sidewalk defect existed on the date of the accident. Great Front further disputes whether the condition depicted in plaintiff's photographs accurately reflects the condition of the sidewalk on August 28, 2021, pointing to alleged inconsistencies between plaintiff's testimony, written statement, and the metadata associated with the photographs. Great Front additionally argues that questions of fact exist concerning responsibility for the sidewalk. Specifically, it contends that New Dumbo occupied the premises pursuant to a lease agreement that imposed comprehensive and exclusive obligations to maintain and repair the sidewalk and that New Dumbo continued to retain possession, control, and maintenance responsibilities after vacating the premises. It further asserts that New Dumbo may have caused or contributed to the alleged defect through prior sidewalk repairs, the continued maintenance of the sidewalk after vacatur of the rented premises, and its extensive commercial use of the driveway portion of the sidewalk by heavy trucks. Accordingly, Great Front maintains that plaintiff's motion should be denied because issues of fact exist regarding the existence and nature of the alleged defect, responsibility for sidewalk maintenance, whether New Dumbo created or contributed to the condition, and whether New Dumbo exercised special use of the driveway portion of the sidewalk. (See generally NYSCEF Doc No. 119.)

Discussion

Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The party moving for summary judgment must present a prima facie case of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez v Prospect Hosp., 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Once a prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so; mere expressions of hope are insufficient to raise a genuine issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). If there is any doubt as to the existence of a triable issue of fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party (see Bazdaric v Almah Partners LLC, 41 NY3d 310, 314 [2024]).

The issue here is whether plaintiff has established, as a matter of law, that Great Front breached its duty under Administrative Code § 7-210 by failing to maintain the sidewalk in a reasonably safe condition, and that such breach proximately caused plaintiff's injuries, such that no triable issues of fact remain regarding liability. Administrative Code § 7-210 imposes upon the owner of real property abutting a sidewalk a duty to maintain the sidewalk in a reasonably safe condition. However, the statute does not impose strict liability, and a plaintiff must still establish the elements of negligence, including the existence of a dangerous condition and a breach of the owner's duty of care (see Curry v Eastern Extension, LLC, 202 AD3d 907 [2d Dept 2002]). Here, the parties dispute whether the sidewalk existed in the condition depicted in plaintiff's photographs on the date of the accident. Both Great Front and New Dumbo deny that the sidewalk appeared as shown in the photographs identified by plaintiff. Moreover, defendants have raised questions regarding the timing and reliability of the photographs. Plaintiff testified that the photographs were taken two weeks after the alleged accident and on the same day she prepared her written statement regarding the occurrence (see NYSCEF Doc No. 119 at 4). However, the written statement was merely six days after the alleged accident, while the metadata reflects that the photos were taken four days after plaintiff provided a statement referencing said photographs and ten days after the alleged occurrence (see id). These inconsistencies present credibility determinations concerning whether the photographs accurately depict the condition of the sidewalk on the date of the alleged occurrence.

In addition, questions of fact remain concerning the nature and extent of the alleged defect. Whether a dangerous or defective condition exists so as to give rise to liability generally depends upon the particular circumstances of the case and is ordinarily a question for the trier of fact (see Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]). Here, although plaintiff submits photographs and measurements of the alleged defect, the parties dispute the condition's appearance and characteristics on the date of the accident. Summary judgment is particularly inappropriate where the dimensions and characteristics of the alleged defect are disputed or where photographic evidence is inconclusive (see Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 84 [2015]). Here, plaintiff seeks a determination of liability based principally upon photographs allegedly depicting the sidewalk condition. Given the parties' dispute regarding whether those photographs accurately reflect the condition of the sidewalk on the date of the accident, the issue of whether the condition constituted a dangerous defect is properly reserved for the jury, as the trier of fact.

Conclusion

Therefore, material questions of fact remain regarding the existence and nature of the alleged sidewalk defect, whether the sidewalk existed in the condition depicted in plaintiff's photographs on the date of the accident, and whether Great Front breached its duty to maintain the sidewalk in a reasonably safe condition.

It is hereby ORDERED that Plaintiff's motion for summary judgment on liability is DENIED.

E N T E R

HON. AARON D. MASLOW

Justice of the Supreme Court of the State of New York

FOOTNOTES

FOOTNOTE.  

1.   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.* FN* This Court acknowledges the assistance of Cindy Zhang, judicial intern and second year student at Cardozo School of Law, in the preparation of this decision.