NARVAEZ v. 2914 THIRD AVENUE BRONX LLC

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Supreme Court, Appellate Division, First Department, New York.

Herminia NARVAEZ, Plaintiff–Respondent, v. 2914 THIRD AVENUE BRONX, LLC, et al., Defendants–Appellants,

KK & J, LLC, Defendant. 2914 Third Avenue Bronx, LLC, et al., Third–Party Plaintiffs–Appellants–Respondents, v. 2914 Sportswear Realty Corp., Third–Party Defendant–Respondent–Appellant.

Decided: October 13, 2011

GONZALEZ, P.J., ANDRIAS, SAXE, SWEENY, JJ. Harrington, Ocko & Monk, LLP, White Plains (Dawn M. Foster of counsel), for appellants/appellants-respondents. Burke, Lipton & Gordon, White Plains (Ashley E. Sproat of counsel), for respondent-appellant. Peña & Kahn, PLLC, Bronx (Diane Welch Bando of counsel), for respondent.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 27, 2009, which denied defendants/third-party plaintiffs' motion for summary judgment dismissing the complaint or, in the alternative, for conditional summary judgment against third-party defendant on their indemnification claims, and denied third-party defendant's cross motion for summary judgment dismissing the third-party complaint, unanimously affirmed, without costs.

On August 11, 2005, plaintiff tripped and fell on an alleged defective sidewalk condition in front of the building located on 2914 Third Avenue in the Bronx.   The premises were owned and managed by defendants/third-party plaintiffs 2914 Third Avenue Bronx LLC and Thor Equities LLC, respectively (collectively “Thor”), and leased to third-party defendant 2914 Sportswear Realty Corp. pursuant to an agreement dated July 18, 2005.   Plaintiff commenced this action against Thor, alleging negligence, and Thor commenced a third-party action against 2914 Sportswear, seeking, among other things, common law and contractual indemnification.

The court properly denied Thor's motion for summary judgment dismissing the complaint, and 2914 Sportswear's cross motion for summary judgment dismissing the third-party complaint.   Neither Thor nor 2914 Sportswear made a prima facie showing that plaintiff did not trip and fall on a sidewalk defect in front of their building.   Although plaintiff, an elderly woman with a second-grade education, had difficulty articulating her thoughts during her deposition, her testimony as a whole is consistent with her claim that she tripped and fell on a raised sidewalk flag in front of 2914 Third Avenue.   The maps submitted by Thor further support plaintiff's claim as to the location of the accident.   Any discrepancies in her testimony raise credibility issues for the trier of fact (see Francis v. New York City Tr. Auth., 295 A.D.2d 164, 744 N.Y.S.2d 9 [2002] ).

Thor and 2914 Sportswear also failed to establish lack of notice, since they submitted no evidence demonstrating that they regularly inspected the sidewalk prior to the accident (see Massey v. Newburgh W. Realty, Inc., 84 A.D.3d 564, 567, 923 N.Y.S.2d 81 [2011] ).

The report and affidavit of plaintiff's expert witness stating that the defect constitutes a tripping hazard, as well as plaintiff's deposition testimony that she tripped as she was walking, looking straight ahead, with many people around, raise factual questions as to whether the defect was trivial (see Argenio v. Metropolitan Transp. Auth., 277 A.D.2d 165, 166, 716 N.Y.S.2d 657 [2000];  see also Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997];  George v. New York City Tr. Auth., 306 A.D.2d 160, 761 N.Y.S.2d 182 [2003];  Pizzurro v. Kranzco Realty, 288 A.D.2d 4, 732 N.Y.S.2d 10 [2001] ).

Because Thor did not demonstrate clear entitlement under the lease, and factual issues still exist as to Thor's and 2914 Sportswear's negligence and respective fault with respect to the sidewalk condition, a conditional judgment would have been premature (see Bellefleur v. Newark Beth Israel Med. Ctr., 66 A.D.3d 807, 808–809, 888 N.Y.S.2d 81 [2009];  Corrales v. Reckson Assoc. Realty Corp., 55 A.D.3d 469, 868 N.Y.S.2d 2 [2008];  cf. Masciotta v. Morse Diesel Intl., 303 A.D.2d 309, 758 N.Y.S.2d 286 [2003] ).