Opinion
Index No. 609955/19 Motion Seq. No. 001
02-16-2021
DEBRA FRANCO, Plaintiff(s), v. JUSTIN CALABRESE, KERRY BOPP, JAMES HUNT and CATHERINE HUNT, Defendant(s).
Unpublished Opinion
Motion Submitted: 1/11/21
James P. McCdrmack Justice
The following papers read on this motion:
Notice of Motion/Supporting Exhibits......................................X
Affirmations in Opposition.....................................................XXX
One of the affirmations in opposition is an "amended" affirmation as the original affirmation listed the wrong defendants.
Reply Affirmation....................................................................X
Plaintiff, Debra Franco (Franco), moves this court for an orders pursuant to CPLR §3212, granting her summary judgment on the issue of liability. Defendants, Justin Caiabrese (Calabrese) Kerry Bopp (Bopp), and Catherine Hunt (Hunt) oppose the motion.
A Stipulation of Discontinuance was filed in favor of James; Hunt only on July 30, 2020.
Plaintiff commenced this trip and fall action by service of a summons and complaint, dated July 19, 2019. Issue was joined by service of an answer with a cross claim by the Hunts dated September 4, 2019. Calabrese and Bopp served an answer with a cross claim dated September 13, 2019.
In the evening of December 1, 2018, Franco was waking with a friend on Utterby Road in Malverne, County of Nassau. She alleges that while walking on the sidewalk, she tripped over an uneven part of the sidewalk, causing her to fall and, inter alia, break bones in her hand. On the date of the alleged incident, Hunt owned the home located at 80 Utterby Road and Calabrese and Bopp owned the house located at 90 Utterby Road. Franco alleges the sidewalk where she fell is "between" the two homes, and further alleges that both homeowners are liable because 20 years ago both shared the cost of fixing the sidewalk at that time. Franco now moves for summary judgment on the issue of liability.
It is well settled that in a motion for summary judgment the moving party bears the burden of making a prima facie showing that he or she is entitled to summary judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of a material issue of fact (see Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 [1957]; Friends of Animals, Inc. v. Associates Fur Mfrs., 46 N.Y.2d 1065 [1979]; Zuckerman v. City of New York, 49 N.Y.2d 5557 [1980]; Alvarez V. Prospect Hospital, 68 N.Y.2d 320 [1986]).
The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegard v. New York University Medical Center, 64N.Y.2d 851 [1985]). Once this showing has been made, however, the burden shifts to the party opposing 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 (see Zuckerman v. City of New York, 49 N.Y.2d 5557 [1980], supra).
One cannot be held liable for a dangerous or defective condition on property unless ownership, occupancy, control or special use of the property has been established. (Ruggiero v. City School District of New Rochelle, 109 A.D.3d 894 [2nd Dept 2013]; Soto v. City of New York, 244 A.D.2d 544 [2nd Dept. 1997]; James v. Stark, 183 A.D.2d 873 [2nd Dept. 1982]).
A finding of negligence requires a showing that the defendant owed the plaintiff a duty of care, the defendants breached that duty, the breach was the proximate cause of the the injury and that there were damages as a result (Abbot v Johnson, 152 A.D.3d 730 [2d Dept 2017]). A landowner, as opposed to a municipality, will be liable for sidewalk defects where the municipality enacts a statute or ordinance that specifically shifts liability for injuries caused by such defects onto the landowner. (Petrillo v. Town of Hempstead, 85 A.D.3d 996 [2d Dept 2011]).
In support of her motion, Franco relies upon, inter alia, the pleadings, a notice of claim with photos, deposition transcripts of the parties and an expert affirmation. The photos annexed to the notice of claim, which Franco alleges were taken the day after her accident, show a raised portion of sidewalk next to a tree. It appears the tree has caused the entire flag to lift so that it would be uneven with the flag on either side of it. Franco's expert, Nicholas Bellizzi, P.E., a professional engineer, estimates, in the area where Franco fell, that the differential between the flag lifted by the tree and the adjacent flag is at least three inches.
Mr. Bellizzi did not visit the location and bases his opinion solely on the pictures presented. For that reason, the court does not accept all of his findings, However, the court is satisfied that an engineer with Mr. Bellizzi's significant qualifications and 48 years of experience can accurately estimate the differential of sidewalk flags based upon pictures.
There is no set number of inches a hole, or differential in sidewalk flags, must be to be actionable. (Trincere v. County of Suffolk, 90 N.Y.2d 976 [1997]), Instead, a defect must be considered in context of the particular case, while considering width, depth, elevation and irregularity. Id. Herein, the pictures make out an actionable defect. To the naked eye, the differential between the flags is significant and clearly a hazard. As a result, the court finds Franco has established entitlement to summary judgment as matter of law. The burden shifts to Defendants to raise a material issue of fact requiring a trial of the action.
In opposition. Hunt raises an issue of fact. She submits a land survey which shows that the defective sidewalk abuts the Calabrese/Bopp property, and not hers. The fact that she and the prior owner of 90 Utterby Road shared the cost to fix the sidewalk in front of both of their houses 20 years ago does not indicate she created the current defect. To the contrary, it is clear that the subject defect was caused by a tree root growing under the flag and not any sidewalk work. Further, Calabrese acknowledges he was cited by the Village to repair the sidewalk while Hunt was not. The court rejects Franco's objection to the court considering the surveyor's affidavit and findings.
As for Calabrese and Bopp, they argue they lacked actual or constructive notice of any alleged defect. In support of "that argument, they cite to Early v. Hilton Hotels Corp., 73 A.D.3d 559 (1st Dept 2010). According to the Early court: "A defendant owner is charged with having constructive notice of a defective condition when the condition is visible,, apparent, and exists for a sufficient length of time prior to the occurrence of an accident to permit the defendant to discover and remedy the condition." (Id. at 561)(cites omitted). In Early, the plaintiff fell over a strap on the sidewalk outside of a loading dock. The Early court found that there was neither actual nor constructive notice. The facts of Early are distinguishable from the matter herein. In Early, the defect was a piece of material that could have been on the sidewalk for only moments prior to the accident in that case, and was not a permanent part of the sidewalk. Herein, it is common sense that the defect could not have been formed minutes* hours Or even days prior to the accident. Franco's expert estimates it would have been created over a period of years. Again, common sense would support that opinion based upon what is known about the rate in which trees and tree roots grow.
Further, prior to the accident Calabrese states he walked over that area of sidewalk regularly, yet alleges he never noticed the defect. While that statement as difficult as it might be to believe, could raise an issue of fact regarding actual notice, it does not raise and issue of fact regarding constructive notice. It is clear that the defect existed for along enough period of time that Galabrese arid Bopp should have been aware of it As such, the court finds Calabrese and Bopp are unable to raise an issue of fact.
Accordingly, it is hereby
ORDERED, that Franco's motion for summary judgment on liability is GRANTED in part and DENIED in part. It is GRANTED as against Galabrese and Bopp and it s DENIED as against Hunt, This order makes no finding as to the existence or absence of liability on Franco's part.
The court has considered the parties' remaining arguments and finds them to be without merit.
This foregoing constitutes the Decision and Order of the Court.