SANTOS BREA v. 901 HONEYWELL LLC (2022)

Plaintiff brings this personal injury case against 901 Honeywell, LLC. Defendant now 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 23rd, 2017 when she was sitting in a walker, which she had just purchased at a Walgreens Pharmacy and being pushed by her sister-in-law, Ginny Vicioso, on the sidewalk in front of 901 East Tremont Avenue in Bronx County. Plaintiff contends that the walker's front wheels hit a defective sidewalk expansion joint, causing the walker and plaintiff to fall to the ground. Defendant is the owner of the premises abutting the sidewalk where plaintiff allegedly was caused to fall out of the walker and injure herself.

Defendant moves for summary judgment dismissing the complaint, asserting that the defect was trivial in nature and hence nonactionable and that plaintiff has failed to identify the cause of her accident. Defendant further argues that plaintiff's claims should be dismissed based on spoliation for failing to preserve the walker involved in the subject accident.

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 partyopposing 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]).

Defendant's motion for summary judgment is supported, inter alia, with an affidavit from their engineer, Jeffrey Schwalje, P.E. Defendant asserts that its expert inspected the sidewalk and provided his opinion that the subject sidewalk was safely maintained for public use, and there were no defective conditions present on said sidewalk which could have proximately caused plaintiff's accident. According to the affidavit, Mr. Schwalje inspected the sidewalk on September 15, 2021. Mr. Schwalje states that the height differential along the expansion joint in the area plaintiff testified the walker tipped over was code complaint with the NY Administrative Code which permits height differentials of less than 0.5 inches in height in sidewalks. Mr. Schwalje claims that the height differential between the slabs, was 0.375 inches. His affidavit further states that based on his inspection, and review of records and photographs, it was his opinion, within a reasonable degree of engineering certainty, that plaintiff's accident was caused solely by her own negligence by sitting and riding on a walker being pushed backwards, in a manner for which it was not designed.

Myungsook Jun testified on behalf of the defendant that she is the 99 percent owner of 901 Honeywell. Defendant owned the premises located at 901 EastTremont Avenue for the past 15 years. The property, including its sidewalk, was newly constructed by defendant and completed in 2007.

Plaintiff's testimony, regarding the allegedly defective sidewalk, was that there was a differential between sidewalk flags where one was higher than the other. She circled the area of the alleged height differential on a photograph, marked as Exhibit G-1.

Shortly after the accident, plaintiff sent the walker to her father in Santo Domingo, Dominican Republic. Plaintiff states that she did not know or have notice that the walker would be evidence in litigation. Plaintiff testified in her affidavit that she never intended to commence the present action. It was only after the full extent of her injuries weas known, that she commenced the action by filing a summons and complaint on January 16, 2020, almost three years after the accident.

Plaintiff's sister in-law Ginny Vicioso testified at her deposition that she did not observe anything wrong with the sidewalk prior to the accident. Ms. Vicioso testified that while pushing the seated plaintiff in the walker, she felt the walker's front wheel strike the uneven condition, causing plaintiff to fall. She further testified that upon feeling the impact, she looked and saw the uneven condition which caused the accident.

Plaintiff also relies on the affidavit of its expert, Stanley Fein, P.E. Engineer Fein investigated the cause of plaintiff's accident. Said investigation included a review of the bill of particulars, deposition testimony, photos of the accident location and a site inspection on May 23, 2022.

Mr. Fein opines to a reasonable degree of engineering certainty that the defendant's construction of the sidewalk with expansion joints which require a 1 1/414 inch width of caulking material was a departure from good and acceptable engineering practices in that the same resulted in the caulking material being unstable, coming out of the expansion joint, thus causing and creating a 1 inch wide, 1 inch deep, sidewalk defect which he concludes was a proximate cause of the accident.

Mr. Fein further opines to a reasonable degree of engineering certainty that the dangerous and defective condition was caused and created by the property owners construction and improper maintenance of the sidewalk and a violation of New York City Department of Transportation Highway Rules and Regulations Section 2-09(f)(5).

In connection with sanctions for spoliation of evidence, “[w]hile reluctant to dismiss a pleading absent willful or contumacious conduct, courts will consider the extent of prejudice to a party and whether dismissal is necessary as a matter of elementary fairness” (Favish v Tepler, 294 AD2d 396 [2nd Dept 2002]). “Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126” (Holland v W.M. Realty Mgt., Inc., 64 AD3d 627, 629 [2nd Dept. 2009]). “The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence” (Lentz v Nic's Gym, Inc., 90 AD3d 618, 618 [2nd Dept 2011]). It may, under appropriate circumstances, impose a sanction “even if the destruction occurred through negligence rather than willfulness, and even if the evidence was destroyed before the spoliator became a party, provided [the party] was on notice that the evidence might be needed for future litigation” (DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, 53 [2nd Dept 2008]).

Here there is no evidence that the plaintiff acted willfully, contumaciously, or in bad faith. Plaintiff maintains that she did not know or have notice that the walker would be evidence in litigation when she sent the walker to her father in Santo Domingo. Additionally, the record does not demonstrate that the loss of the walker will fatally compromise the defense or leave the defendants without the means to defend the action (compare DiDomenico at 53). Under these circumstances, defendants failed to establish that a sanction as extreme as dismissal of the complaint is warranted.

Generally, whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury unless the defect is demonstrated to be trivial as a matter of law (see Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]). Property owners may not be held liable for trivial defects (Id. at 977).

In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, including the width, depth, elevation, irregularity and appearance of the defect, along with the time, place and circumstances of the accident. “Circumstances” has been interpreted to include, but not be limited to, the sufficiency of the lighting, the existence of rain, snow, leaves or debris (Fontana v Winery, 84 AD3d 863, 864-865 [2nd Dept 2011]). There is no “minimum dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable (Ricker v Board of Educ. Of Town of Hyde Park, 61 AD3d 735 [2nd Dept. 2009]).

With regard to the duty to repair, § 19-152(a) provides that a property owner is required to repair “a defective sidewalk flag in front of or abutting such property,” which “contains a substantial defect.” A substantial defect is defined to include a height differential between sidewalk flags of one-half inch or more.

Plaintiff's deposition testimony as a whole is consistent with her claim that she fell from the walker after its front wheels struck a height differential in the sidewalk in front of defendant's building. Any inconsistencies in her testimony in this regard raise credibility issues for a jury to determine.

Plaintiff's papers in opposition raised triable issues of fact as to whether the height differential between two sidewalk flags was a “substantial defect” under Administrative Code of the City of New York § 19-152(a)(4) and (a-1)(5), and whether the alleged defect had existed for a sufficient length of time to put defendant on notice of the condition (see D'Amico v Archdiocese of NY, 95 AD3d 601 [1st Dept. 2012]).

In conclusion, the photographs, the conflicting experts’ affidavits as to the height differential between the sidewalk flags, and plaintiff's deposition testimony, are insufficient to demonstrate as a matter of law that the alleged defect is trivial and therefore, not actionable.

To the extent that defendant argues that plaintiff was a proximate cause of her own accident because she improperly was using the walker, this only raises issues of comparative negligence.

Accordingly, it is hereby

ORDERED that the motion of defendants pursuant to CPLR 3212 for an order granting summary judgment dismissing all claims is denied in its entirety.;

This is the Decision and Order of the Court.

Adrian Armstrong, J.