Kuznik-Defranco v. Cushman & Wakefield, Inc.

195 A.D.3d 1405

145 N.Y.S.3d 493 (Mem)

Dawn KUZNIK-DEFRANCO, Plaintiff-Respondent,

v.CUSHMAN & WAKEFIELD, INC., Defendant-Appellant, et al., Defendants.

200.1

CA 20-00365

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

Entered: June 11, 2021

FELDMAN KIEFFER, LLP, BUFFALO (ADAM C. FERRANDINO OF COUNSEL), FOR DEFENDANT-APPELLANT.

COLLINS & COLLINS ATTORNEYS, LLC, BUFFALO (ETHAN W. COLLINS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, LINDLEY, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this premises liability action, defendant-appellant (defendant) appeals from an order that denied its motion for summary judgment dismissing the amended complaint against it. Contrary to defendant's contention, it failed to establish that the alleged defect that caused plaintiff to fall was trivial as a matter of law (see generally Hutchinson v. Sheridan Hill House Corp. , 26 N.Y.3d 66, 78,, 19 N.Y.S.3d 802 41 N.E.3d 766 [2015] ). In support of its motion, defendant submitted plaintiff's deposition testimony, wherein she explained that there was a several-inch-deep hole in the sidewalk next to a sidewalk grate and that she fell when her foot became caught between the hole and the sidewalk grate, the latter of which was raised approximately "an inch and a half or so" above the level of the sidewalk. Thus, although defendant asserts that the hole was a design element of the sidewalk grate intended to accommodate a support beam for the grate, the dangerous condition alleged here is the combination of that hole and the raised sidewalk grate that occurred in a "heavily traveled walkway—where pedestrians are naturally distracted from looking down at their feet" ( id. ; see Brenner v. Herricks Union Free Sch. Dist. , 106 A.D.3d 766, 767, 964 N.Y.S.2d 605 [2d Dept. 2013] ). Thus, we also reject defendant's alternative contention that, if the dangerous condition were not trivial as a matter of law, then it was so open and obvious that it warranted dismissing plaintiff's failure to warn claim (see Hayes v. Texas Roadhouse Holdings, LLC , 100 A.D.3d 1532, 1533-1534, 954 N.Y.S.2d 348 [4th Dept. 2012] ).

Contrary to its further contention, defendant failed to meet its " ‘initial burden of establishing that it did not create the alleged dangerous condition and did not have actual or constructive notice of it’ " ( King v. Sam's E., Inc. , 81 A.D.3d...