DOMINGUEZ v. 990 ANDERSON AVE CORP (2022)

Plaintiff brings this personal injury case against 990 Anderson Ave. Corp. Plaintiff moves for partial summary judgment on the issue of liability pursuant to CPLR § 3212. Defendant opposes the motion and cross-moves for summary judgment pursuant to CPLR § 3212 dismissing the plaintiff's complaint against it.

Plaintiff seeks damages for injuries she allegedly sustained on August 8, 2016, from a trip and fall accident that was caused by a defective portion of the sidewalk abutting the property of 990 Anderson Avenue, Bronx, New York. Defendant owned the property located at 990 Anderson Avenue.

Plaintiff testified in connection with this action at her deposition that the accident occurred when the tip of her right foot hit an unevenness on the sidewalk, and she fell forward to the ground. Plaintiff was shown a black and white photo of the subject sidewalk in front of the subject property and she identified the unevenness of the sidewalk that caused her to fall. Moreover, plaintiff relies on a Google Street View image captured on June 2014, over two years prior to the accident, which she argues demonstrates that the subject defect was visible and in existence at that time and in need of repair.

Defendant's witness Xhem Kukaj testified in connection with this action at his deposition on May 21, 2019. Mr. Kukaj, as a superintendent of the subject property, testified that he did not have any responsibility to make repairs to the outside of the building but he did check the sidewalk every day for problems. Mr. Kukaj reviewed the same photograph as plaintiff did at her deposition and testified that he recognized the building and the sidewalk area on Anderson Avenue; that he had previously seen the condition on the sidewalk circled in the photograph and that he also made the repairs that were circled in the photograph. He could not, however, recall when he made the repairs. Mr. Kukaj further testified that he patched the area a couple of times and estimated that he repaired it five to six times in the past thirteen years. Lastly, Mr. Kukaj testified that in the area at issue there was approximately an inch and a half difference between the heights of the flagstones prior to the repairs.

Plaintiff also submitted an affidavit by Vincent Pici, P.E., a licensed professional engineer, who reviewed the Verified Bill of particulars, deposition testimony from plaintiff, photographs of the alleged defective sidewalk, deposition testimony from Mr. Kukaj as well as the Google Maps image. After concluding his analysis, Mr. Pici came to the following conclusions within a reasonable degree of engineering certainty: (1) that this type of defect, and the amount of vertical displacement at the accident location shown in the photographs would have occurred over an extended period; (2) that based upon his review of the photographs, and the applicable codes requirements that the defect shown in the photographs were substantial defects; (3) that the defective area of the sidewalk containing a significant vertical displacement and an ineffective patchwork “ramp” repair at the location, both of which constituted a dangerous tripping hazard; (4) that the conditions of the sidewalk as illustrated in the photographs were visible to the owners of the property, and they were aware of the hazardous condition, and that no action was taken by the owner of the property to have the condition addressed by qualified personnel in a timely manner as required; and (5) that sidewalk condition as it existed on the date of plaintiff's accident, and the owner's failure to correct the substantial defect, did not comply with requirements outlined in Section 7-210, and 19-152 of the New York City Administrative Code, as well as New York City Department of Transportation Highway Rules, Title 34, Chapter 2, including Section 2-09, as they relate to required sidewalk maintenance and repairs.

In opposition to plaintiff's motion and in support of its cross-motion for summary judgment, defendant contends that Mr. Kukaj, its superintendent, who confirmed his repair of the subject sidewalk removed any height differential and he did not receive any prior complaints about the sidewalk.

Defendant also relies on an affidavit of an engineering consultant, Jeffrey J. Schwalje, managing director of Allied Engineering Laboratories, Inc., who reviewed amongst other things, a color photograph identified as depicting the place where plaintiff fell, plaintiff's Complaint, plaintiff's Bill of Particulars, the Examination Before Trial of the plaintiff and Xhem Kukaj, the affidavit of Vincent Pici, P.E., and the applicable standards, rules, and codes including the New York City Administrative and Building Codes. He also conducted an inspection of the subject accident location on August 23, 2019. Based on his inspection and review of the aforementioned documents, Schwalje opined based on a reasonable degree of engineering certainty: (1) the subject sidewalk where plaintiff claims to have tripped and fell was a well-maintained concrete patch even with the adjacent slab, thereby eliminating the height differential between the slabs and therefore code-compliant and safe; (2) the subject sidewalk was properly designed, constructed and maintained; (3) the subject concrete patch was of a safe normal slope and should not cause a person to misstep; and (4) plaintiff failed to look down at the sidewalk in front of her as she was approaching the concrete patch, and had she done so she would have been aware that there was a sloped concrete patch on the sidewalk.

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 in admissible form to demonstrate the absence of any material issues of fact. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party. Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014].) Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality, and not the abutting landowner (see Hausser v Giunta, 88 NY2d 449, 452-453 [1996]). “However, an abutting landowner will be liable to a pedestrian injured by a defect in a sidewalk where the landowner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates the owner to maintain the sidewalk” (Staruch v 1328 Broadway Owners, LLC, 111 AD3d 698, 698 [2nd Dept 2013]). Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tot liability for injures “arising from a defective sidewalk from the City of New York to the abutting property owner” (Pevzner v 1397 E. 2nd, LLC, 96 AD3d 921, 922 [2nd Dept 2012]).

Here, plaintiff made a prima facie showing that defendant violated its duty to maintain the sidewalk abutting its property in a reasonably safe condition by failing to properly repair and replace the sidewalk flag hazard on which she tripped. The Administrative Code of the City of New York unambiguously imposes a duty upon owners of certain real property abutting any sidewalk to maintain that sidewalk in a reasonably safe condition, which includes repaving, repairing and replacing defective sidewalk flags (Administrative Code § 7-210[b]; Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 173-174 [2019]). Furthermore, property owners are specifically required to, at their own cost and expense, repave or repair any portion of the sidewalk that constitutes a tripping hazard where “the vertical grade differential between adjacent sidewalk flags is greater than or equal to one half inch” (Administrative Code § 19-152[a] [4]; Trooper v Henry St. Settlement, 190 AD3d 623 [1st Dept. 2021]). Plaintiff's expert Vincent Pici, P.E., concluded that the sidewalk condition was a dangerous tripping hazard and that defendant was on notice of said defect yet failed to repair the defect in accordance with the applicable regulations. Defendant had notice of the defective condition of the sidewalk demonstrated by the attempted repairs by its employee Mr. Kukaj.

In opposition, defendant did not include in its opposition papers a Statement of Material Facts, as required by Uniform Trial Court Rule 202.8-g(b). 22 NYCRR 202.8-g (eff. Feb. 1, 2021). Consequently, under Rule 202.8-g(c), each fact stated in plaintiff's Statement of Material Facts is deemed admitted. On review of said material facts, this Court concludes that the plaintiff is entitled to partial summary judgment.

Even if the court were to consider defendant's opposition to the motion, it has failed to raise a triable issue of fact sufficient to defeat plaintiff's motion. As for Schwalje's expert opinion, the court finds that it is insufficient to raise a triable issue of fact. Schwalje's opinion was that the sidewalk was properly maintained, safe, and violated no known, enforceable codes or standards. However, Mr. Kukaj specifically testified that he prepared the are due to a one-and-a-half-inch height differential. Defendant's expert has not controverted plaintiff's argument that the patching of the sidewalk where plaintiff fell was in contravention of the law. It is clear that “[a]ll flags containing substantial defects shall be fully replaced. Patching of individual flags is not permitted” (see 34 RCNY 2-09(f)(4)(viii). 34 RCNY 2-09(f)(5)(iv) states, in pertinent part that a trip hazard is considered a substantial defect where the vertical differential between adjacent flags is greater than or equal to 1/212 inch or where a flag contains one or more surface defects of one inch or greater in all horizontal directions and is 1/212 inch or more in depth. Defendant's superintendent's own testimony was that prior to repair of the subject sidewalk, there was a height differential of one and a half inches at some place between the two flagstones. Mr. Kukaj also admitted that he patched the area a couple of times, and estimated that he repaired it five to six times in the past thirteen years.

Accordingly, the proper method to address flagstones with substantial defects is to fully replace the flagstone, not do patchwork, which was done in this case over the years. Thus, defendant has failed to raise a triable issue of fact sufficient to defeat plaintiff's motion.

To the extent that defendant argues that plaintiff was a proximate cause of her own accident because she failed to look down at the sidewalk in front of her as she was approaching the concrete patch, this only raises issues of comparative negligence. A plaintiff is not required to demonstrate the absence of her own comparative fault in order to obtain partial summary judgment on the issue of liability (Rodriguez v City of New York, 31 NY3d 312, 324-325 [2018]).

In light of the court's determination on plaintiff's motion, the court denies defendant's cross-motion.

The court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by either party was not addressed by the court, it is hereby denied.

Accordingly, it is hereby

ORDERED, that the motion of plaintiff pursuant to CPLR 3212 for an order granting partial summary judgment on the issue of liability against the defendant is granted; and it is further

ORDERED, that defendant's cross-motion for summary judgment is denied.

This is the Decision and Order of the Court.

Adrian Armstrong, J.