Luz Garcia, Plaintiff–Appellant, v. 549 LLC

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Supreme Court, Appellate Division, First Department.

Luz Garcia, Plaintiff–Appellant, v. 549 Inwood Associates, LLC, et al., Defendants–Respondents.


Decided: February 18, 2016

Renwick, J.P., Andrias, Saxe, Richter, JJ. Melcer Newman PLLC, New York (Jeffrey B. Melcer of counsel), for appellant.

Fiden & Norris, LLP, New York (Charles B. Norris of counsel), for 549 Inwood Associates, LLC, respondent.

Paganini, Cioci, Pinter, Cusumano & Farole, Melville (Richard Geffen of counsel), for Academy Row Associates, respondent.


Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered September 9, 2014, which granted defendants' motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants established their entitlement to judgment as a matter of law, in this action where plaintiff alleges that she was injured when she tripped and fell on a long crack between pavement flags in a walkway that was between two buildings owned by defendants.  Defendants submitted evidence, including deposition testimony, an affidavit of an inspector who measured the crack as 1/4” deep, and photographs, demonstrating that the subject defect was trivial and thus, not actionable (see Hutchinson v. Sheridan Hill House Corp., 26 NY3d 66 [2015];  Stylianou v. Ansonia Condominium, 49 AD3d 399 [1st Dept 2008] ).  The photographs show that the crack was in the middle of the walkway, in a well-illuminated location, and was not hidden or covered in any way so as to make it difficult to see and identify as a hazard (see e.g. Hutchinson at 78–80).

In opposition, plaintiff failed to raise a triable issue of fact as to whether the crack in the walkway constituted a dangerous condition under the circumstances.  She provided no affidavit of a person who had measured the crack, but only her own and her daughter's estimates of its depth.

We have considered plaintiff's remaining arguments and find them unavailing.