CALDERON v. 2861 3RD AVENUE LLC (2021)

Upon the foregoing papers, the motion of the defendant 2861 3RD Avenue LLC, for summary judgment and dismissing the complaint, pursuant to CPLR 3212, is decided as follows:

This is an action to recover for personal injuries sustained by plaintiff on August 28, 2017, at approximately 4:30 p.m., when alighting from a bus, she tripped and fell on a defective condition on the sidewalk adjoining the property of 2861 Third Avenue, Bronx, New York.

Defendant argues that the area of the sidewalk wherein plaintiff fell is within the twelve (12) inch perimeter of a manhole cover, and as owner of the adjoining property, it has no duty to repair and/or maintain the area on the sidewalk within the 12-inch perimeter of the manhole cover. In support of its motion for summary judgment, Ira Halberstadt, the property manager for the Defendant from 2008 to March 2020, testified at his deposition that prior to and during August 28, 2017, during his weekly inspections to the property he would inspect and examine the sidewalk in front of 2861 Third Avenue for slipping and tripping conditions. Mr. Halberstadt testified that he did not observe any defects or uneven condition in front of the subject location in the same shape as that depicted in the photos he viewed of the area where Plaintiff claims to have tripped and fell. He maintained that the photos were not an accurate depiction of the sidewalk condition in 2017 in front of Defendant's premises. He further testified that if he had observed uneven sidewalk or a similar condition, he would have repaired it as it could present a potential tripping hazard in light of the bus stop on front of defendant's building.

In opposition to defendant's motion for summary judgment, plaintiff argues that defendant did not measure the distance between the defect and the manhole to confirm that the defect was in fact within 12 inches of the manhole, and thus failed to present prima facie evidence that it had no duty. In the alternative, plaintiff claims that by her EBT testimony and by her photographs she raised a question of fact as to whether the defect was beyond 12 inches from the manhole. Furthermore, plaintiff argues that the appearance of the defect as shown in the photographs raise a question of fact as to constructive notice.

A party moving for summary judgment must show prima facie an entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Friends of Thayer Lake LLC v Brown, 27 NY3d 1039, 1043 [2016]). To defeat summary judgment, the party opposing the motion has to show that there is a material question(s) of fact that requires a trial (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In deciding a motion for summary judgment, the court should interpret the evidence in a manner that most favors the opposing party (see Kershaw v Hospital for Special Surgery, 114 AD3d 75, 82 [1st Dept. 2013]).

Administrative Code section 7-210 generally imposes liability for injuries resulting from negligent sidewalk maintenance on the abutting property owners. Rules of City of New York Department of Transportation 34 RCNY 2-07, however, imposes the duty of maintenance and repair of a sidewalk grate on the owner of the grate, which in this case has not been disclosed. 34 RCNY section 2-07(b)(1) provides that “[t]he owners of covers or gratings on a street are responsible for monitoring the condition of the covers and gratings and the area extending twelve inches outward from the perimeter of the hardware” (see Cruz v New York City Tr. Auth., 19 AD3d 130, 130-131 [2005]). 34 RCNY 2-07(b)(2) requires that “[t]he owners of covers or gratings shall replace or repair any cover or grating found to be defective and shall repair any defective street condition found within an area extending twelve inches outward from the perimeter of the cover or grating.”

The defendant as movant has the burden of establishing a prima facie case. The photographs do not by themselves establish that the defect was within 12 inches of the manhole. In fact, the photographs appear to indicate that the distance to the defect, as marked by the plaintiff on the photograph, was more than 12 inches. In any event, it was defendant's burden to show the defect was within 12 inches of the manhole, which the defendant failed to do. Therefore, defendant's motion for summary judgment is denied, as it failed to establish that the sidewalk defect which caused plaintiff's fall was outside of the manhole's 12-inch perimeter (34 RCNY 2-07[b][2]). As to constructive notice, the defendant raised a prima facie case, but the plaintiff raised an issue of fact by the plaintiff's testimony that the photographs depict the area in question as of the time of the accident. The photos show a wide area of missing tiles near the manhole cover.

Accordingly, it is hereby,

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

This is the Decision and Order of the Court.

Adrian N. Armstrong, J.