Claro v. 323 Firehouse, LLC

177 A.D.3d 1052

113 N.Y.S.3d 761

Patricia R. CLARO et al., Respondents,

v.323 FIREHOUSE, LLC, et al., Appellants, et al., Defendant.

527670

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

Calendar Date: September 3, 2019

Decided and Entered: November 7, 2019

Goldberg Segalla LLP, Buffalo (William H. Baaki of counsel), for 323 Firehouse, LLC, appellant.

Williamson, Clune & Stevens, Ithaca (John H. Hanrahan 3d of counsel), for Nikolaos Lekakis, appellant.

Basch & Keegan, LLP, Kingston (Eli B. Basch of counsel), for respondents.

Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from an order of the Supreme Court (Elliott III, J.), entered September 17, 2018 in Greene County, which denied motions by defendants 323 Firehouse, LLC and Nikolaos Lekakis for summary judgment dismissing the complaint against them.

In May 2016, plaintiffs went to a diner, owned by defendant Nikolaos Lekakis, in the Village of Catskill, Greene County, to have breakfast. Plaintiff Rocco Claro parked the car on Main Street, adjacent to the diner and near an old firehouse that is owned by defendant 323 Firehouse, LLC. When plaintiff Patricia Claro (hereinafter Claro) exited the car, she stepped onto the sidewalk turning toward the diner and, after walking a short distance, her left foot caught the lip of a raised concrete sidewalk slab causing her to lose her balance and fall. As a result of her trip and fall, Claro sustained injuries to her left shoulder, which required surgery. Prior to the incident, Lekakis had installed a new concrete sidewalk in front of his diner pursuant to a Village incentive program. As part of the program, the Village performed the demolition and removal of the old sidewalk, and Lekakis hired a contractor to install the new sidewalk. Following the contractor's work, the Village allegedly finished the sidewalk project by installing an asphalt transition bevel between the new sidewalk and the sidewalk in front of the old firehouse. Claro fell at or near the juncture of the transition bevel and the adjoining sidewalk.

In December 2016, plaintiffs commenced an action against 323 Firehouse, which answered, asserting several affirmative defenses. Thereafter, plaintiffs commenced a second action against Lekakis and another. After Lekakis answered, the parties stipulated to consolidate the two actions. A note of issue requesting a nonjury trial was filed by plaintiffs, and 323 Firehouse and Lekakis (hereinafter collectively referred to as defendants) then each moved for summary judgment dismissing the complaint. After plaintiffs opposed the motions, Supreme Court determined that defendants failed to meet their summary judgment burdens as triable issues of fact existed as to their negligence. Defendants appeal.

Defendants contend that Supreme Court erred in denying their motions for summary judgment because the alleged defect was trivial. "Although a landowner has a duty to maintain its property in a reasonably safe condition, trivial defects are not actionable" ( Gami v. Cornell Univ., 162 A.D.3d 1441, 1442, 78 N.Y.S.3d 524 [2018] [citations omitted], lv denied 32 N.Y.3d 916, 2019 WL 757675 [2019] ; see Hutchinson v. Sheridan Hill House Corp., 26 N.Y.3d 66, 77–79, 19 N.Y.S.3d 802, 41 N.E.3d 766 [2015] ). "There is no predetermined height differential that renders a defect trivial. Instead, courts must consider the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury" ( Gami v. Cornell Univ., 162 A.D.3d at 1442, 78 N.Y.S.3d 524 [internal quotation marks, brackets and citations omitted]; see Castle v. Six Flags, Inc., 81 A.D.3d 1137, 1139, 917 N.Y.S.2d 386 [2011] ). "Thus, a small difference in height or other physically insignificant defect [can be] actionable if its intrinsic characteristics or the surrounding circumstances magnify the dangers it poses, so that it unreasonably imperil[s] the safety of a pedestrian" ( Gami v. Cornell Univ., 162 A.D.3d at 1442, 78 N.Y.S.3d 524 [internal quotation marks and citations omitted] ).

Here, in support of its motion for summary judgment, 323 Firehouse submitted, among other things, deposition testimony of plaintiffs, photographs of the sidewalk and an expert affidavit of Ernest Gailor, a senior forensic engineer.¹ Although the photographs and deposition testimony reveal that the morning that Claro tripped it was a clear day without precipitation and that the transition bevel bridged a height differential between dark asphalt and newer, light-colored concrete, defendants did not proffer any specific information, such as the dimensions of the alleged defect, or any other information to establish that the defect was trivial in nature (see Padarat v. New York City Tr. Auth., 137 A.D.3d 1095, 1097, 27 N.Y.S.3d 686 [2016] ; Moons v. Wade Lupe Constr. Co., Inc., 24 A.D.3d 1005, 1006–1007, 805 N.Y.S.2d 204 [2005] ). Significantly, Gailor's expert affidavit stated, in a conclusory manner, that the sidewalk conditions "[did] not constitute a defective or hazardous condition." This conclusion was not supported by any specific measurements or dimensions, but was based upon Gailor's inspection of photographs of the alleged defect. As such, defendants failed to establish, prima facie, that the alleged defect was trivial as a matter of law and therefore not actionable (see Padarat v. New York City Tr. Auth., 137 A.D.3d at 1097, 27 N.Y.S.3d 686 ; Moons v. Wade Lupe Constr. Co., Inc., 24 A.D.3d at 1006–1007, 805 N.Y.S.2d 204 ).

Defendants also argue that their motions for summary judgment should have been granted because they...