Leonard Hutchinson, Appellant,v.Sheridan Hill House Corp., Respondent.BriefN.Y.September 17, 2015To be Argued by: KEVIN J. O’DONNELL (Time Requested: 15 Minutes) APL-2014-00045 Bronx County Clerk’s Index No. 307060/09 Court of Appeals of the State of New York LEONARD HUTCHINSON, Plaintiff-Appellant, – against – SHERIDAN HILL HOUSE CORP., Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT KAUFMAN DOLOWICH & VOLUCK, LLP Attorneys for Defendant-Respondent 21 Main Street, Suite 251 Hackensack, New Jersey 07601 Tel.: (201) 488-6655 Fax: (201) 488-6652 Date Completed: December 29, 2014 ST ATE OF NEW YORK COURT OF APPEALS )(-----------------------------------------------------------------)( LEONARD HUTCHINSON, Appellate Division, First Department Plaintjff-Appellant, --against-- Bronx County SHERIDAN HILL HOUSE CORP., Index No.: 307060/09 CORPORATE DISCLOSURE STATEMENT Defendant-Respondent. )(------------------------------------------------------------------)( Defendant-Respondent, Sheridan Hill House Corp, IS a domestic not-for- profit corporation. It has no corporate parents or subsidiaries. While not directly affiliated, Sheridan Hill House Corp. shares some common corporate governance with The Bridge, Inc., also a domestic not-for- profit corporation. Dated: December 29,2014 Hackensack, New Jersey / By: KAUFMAN DOLOWICH & VOLUCK LLP A ttorneys for Defendant-Respondent Sheridan Hill House Corp. 21 Main Street, Suite 251 Hackensack, NJ 07601 (201) 488-6655 60 Broad Street, Suite 3600A New York, NY 10004 To: Michael Braverman, Esq. Getz and Braverman, PC Attorneys for Plaintiff-Appellant 172 East 161st Street Bronx, New York 10451 (718) 993-3000 Brian J. Isaac, Esq. Pollack, Pollack, Isaac & DeCicco Of Counsel to Getz & Braverman, P.C. Attorneys for Plaintiff-Appellant 225 Broadway, Suite 307 New York, NY 10007 (212) 233-8100 4828-7837-1105, v. 1 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 COUNTER STATEMENT OF QUESTIONS PRESENTED FOR REVIEW .......................................................................................................... 3 COUNTER STATEMENT OF THE CASE .............................................................. 3 Background and circumstances of the accident ............................................... 3 Defendant lacked actual or constructive notice of the alleged defect ............. 6 Photographs taken by both parties clearly show the object’s trivial nature ............................................................................................................... 7 The opinions of plaintiff’s engineer are both inadmissible and unreliable ......................................................................................................... 9 Decision and Order of the Motion Court ....................................................... 11 Decision and Order of the Appellate Division .............................................. 12 DISCUSSION .......................................................................................................... 12 POINT I THE COURTS BELOW PROPERLY RULED THAT DEFENDANT MET ITS PRIMA FACIE BURDEN ESTABLISHING THAT IT LACKED NOTICE OF THE ALLEGED DEFECT WHICH PLAINTIFF FAILED TO REBUT ............. 12 POINT II THE ALLEGED DEFECT WAS TRIVIAL AND NON- ACTIONABLE AS A MATTER OF LAW .................................................. 18 POINT III THE MOTION COURT AND APPELLATE DIVISION PROPERLY HELD THAT THE REPORT OF PLAINTIFF’S ENGINEERING EXPERT WAS INADMISSIBLE AND UNRELIABLE .............................................................................................. 24 CONCLUSION ........................................................................................................ 25 ii TABLE OF AUTHORITIES Page(s) Cases: Argenio v. MTA, 277 A.D.2d 165 (1st Dep’t 2000) .................................................................. 22 Arnold v. N.Y. City Hous. Auth., 296 A.D.2d 355 (1st Dep’t 2002) .................................................................. 16 Basso v. Miller, 40 N.Y.2d 233 (1976) .................................................................................... 15 Brenner v. Herricks UFSD, 106 A.D.3d 766 (2d Dep’t 2013) ............................................................. 21-22 Burko v. Friedland, 62 A.D.3d 462 (1st Dep’t 2009) ........................................................ 16, 19, 25 Chase v. Cayuga Med. Ctr. at Ithaca, Inc., 2 A.D.3d 990 (3d Dep’t 2003) ....................................................................... 24 D’Amico v. Archdiocese of NY, 95 A.D.3d 601 (1st Dep’t 2012) .................................................................... 22 Denker v. Century 21 Dept. Stores, LLC, 55 A.D.3d 527 (2d Dep’t 2008) ..................................................................... 17 Figueroa v. Haven Plaza Hous. Dev. Fund Co., 247 A.D.2d 210 (1st Dep’t 1998) .................................................................. 24 Gaud v. Markham, 307 A.D.2d 845 (1st Dep’t 2003) .................................................................. 19 Goldman v. Waldbaum, Inc., 248 A.D.2d 436 (2d Dep’t 1998) ................................................................... 13 Gordon v. American Museum of Natural History, 67 N.Y.2d 836 (1986) .............................................................................. 13, 14 Grasso v. Angerami, 79 N.Y.2d 813 (1991) .................................................................................... 24 Grundstrom v. Papadopolous, 117 A.D.3d 788 (2d Dep’t 2014) ................................................................... 22 iii Hayden v. Waldbaum, Inc., 63 A.D.3d 679 (2d Dep’t 2009) ..................................................................... 17 Hayes v. Riverbend Hous. Corp., 40 A.D.3d 500 (2007) .................................................................................... 15 Kearse v. New York City Transit Auth., 16 A.D.3d 45 (2d Dep’t 2005) ....................................................................... 24 Kraemer v. K–Mart Corp., 226 A.D.2d 590 (2d Dep’t 1996) ................................................................... 13 Kruimer v. National Cleaning Contrs., Inc., 256 A.D.2d 1 (1st Dep’t 1998) ...................................................................... 25 Lance v. Den-Lyn Realty Corp., 84 A.D.3d 470 (1st Dep’t 2011) .................................................................... 17 Meehan v. David J. Hodder, 113 A.D.3d 593 (2d Dep’t 2004) ................................................................... 21 Milewski v. Washington Mut., Inc., 88 A.D.3d 853 (2d Dep’t 2011) ............................................................... 20, 21 Munasca v. Morrison Mgmt. LLC, 111 A.D.3d 564 (1st Dep’t 2013) .................................................................. 21 Papineau v. Powell, 251 A.D.2d 924 (3d Dep’t 1998) ................................................................... 24 Personius v. Mann, 20 A.D.3d 616 (App. Div.), aff’d as modified, 5 N.Y.3d 857, 840 N.E.2d 1024 (2005) ................................................................................ 15 Riley v. City of New York, 50 A.D.3d 344 (1st Dep’t 2008) .................................................................... 20 Schenpanski v. Promise Deli, Inc., 88 A.D.3d 982 (2d Dep’t 2011) ..................................................................... 20 Sokolovskaya v. Zemnovitsch, 89 A.D.3d 918 (2d Dep’t 2011) ............................................................... 19, 20 Strowman v. Great Atl. & Pac. Tea Co., Inc., 252 A.D.2d 384 (1st Dep’t 1998) .................................................................. 14 iv Stuart v. Ellis Hosp., 198 A.D.2d 559 (3d Dep’t 1993) ................................................................... 24 Tavaras v. City of New York, 59 A.D.3d 178 (1st Dep’t 2009) .................................................................... 20 Trincere v. Suffolk Co., 90 N.Y.2d 976 (1997) .............................................................................passim Trionfero v. Vanderhorn, 6 A.D.3d 903 (3d Dep’t 2004) ....................................................................... 18 Vazquez v. JRG Realty Corp., 81 A.D.3d 555 (1st Dep’t 2011) .................................................................... 25 Young v. Ai Guo Chen, 294 A.D.2d 430 (2d Dep’t 2002) ................................................................... 25 Statutes & Other Authorities: NYC Administrative Code § 19-152(4) ................................................................... 10 NYCDOT § 2-09(e)(4)............................................................................................. 10 1 PRELIMINARY STATEMENT Plaintiff-appellant, Leonard Hutchinson (“plaintiff”) appeals from the October 22, 2013 Decision and Order of the Supreme Court, Appellate Division, First Department (332-339) affirming the order of the Supreme Court, Bronx County (Gonzalez, J.) dated July 23, 2012 and entered July 27, 2012 (5-13), granting summary judgment in favor of defendant-respondent Sheridan Hill House Corp. (“Sheridan” or “defendant”). Plaintiff claims that on April 23, 2009 he tripped, fell and was injured due to a cylindrical piece of metal protruding ever so slightly from the sidewalk in front of defendant’s group home located at 1413 Sheridan Avenue, Bronx, New York. While the provenance of the object is unknown, defendant submitted unrefuted evidence establishing its de minimis or trivial nature. Specifically, defendant established that on December 2, 2010 the object was measured to be only five eighths of an inch in diameter and projecting just three sixteenths of an inch1 above the surface of the sidewalk. Plaintiff’s deposition testimony concerning the location of the accident, the weather, lighting and other conditions prevailing at the time of its occurrence, further establish that the object did not constitute a “trap” or a “snare”. On the issue of notice, defendant established that the object’s existence had not previously been 1 This is precisely the height of the bottom-most border of the black magnetic strip on standard MTA Metrocard (246-252). 2 brought to its attention, and despite making regular, daily inspections of the subject sidewalk, none of defendant’s employees had noticed it prior to plaintiff’s accident. Importantly, plaintiff failed to submit any admissible evidence to rebut these showings, just argument. While the motion court chose to rest its decision granting summary judgment solely on lack of notice grounds2, the Appellate Division not only affirmed that defendant lacked actual or constructive notice of the object, which it described as “barely discernable” due to its de minimis size (334), but also held that it constituted a non-actionable, trivial defect as a matter of law. Plaintiff on this appeal fails to advance any persuasive basis for overturning the decisions below. Indeed, the weakness of plaintiff’s position on this appeal is evident in the inherently contradictory and self-defeating nature of his arguments. In support of his respective arguments in favor of notice and against a finding that the defect was trivial, plaintiff simultaneously advances the diametrically the opposite contentions that the object was both “readily apparent” yet “not readily visible”. In fact, the only thing readily 2 Plaintiff incorrectly describes the motion court’s decision granting summary judgment as “based on a ‘trivial’ defect pursuant to Trincere v. Suffolk Co., 90 NY2d 976 [1997]” (Appellant’s Brief, p. 1). While defendant submits the Appellate Division properly affirmed on both lack of notice and trivial defect grounds, a plain reading of the motion court’s decision reveals that its grant of summary judgment was premised solely on grounds that defendant met its prima facie burden establishing it lacked actual or constructive notice of the alleged defect, which plaintiff failed to rebut through evidence in admissible form (12-13). 3 perceived is that these arguments are hopelessly irreconcilable. Defendant respectfully submits that the motion court and the majority of the Appellate Division got it right, and that those decisions should be in all respects affirmed. COUNTER STATEMENT OF QUESTIONS PRESENTED FOR REVIEW 1. Was summary judgment properly granted and affirmed on grounds defendant met its prima facie burden establishing lack of notice, which plaintiff failed to rebut? 2. Did the majority of the Appellate Division properly hold that the alleged defect was trivial and non-actionable as a matter of law? Defendant respectfully submits that these questions should be answered in the affirmative. COUNTER STATEMENT OF THE CASE Background and circumstances of the accident At all times relevant to this action plaintiff resided in an apartment on the eighth floor of the building located at 1511 Sheridan Avenue, Bronx, New York, about a block away from the accident scene (32-33). On April 23, 2009, a Thursday, plaintiff left his apartment between 10:00 a.m. and 11:00 a.m. to walk to the supermarket, which was about two blocks away from his apartment (35, 37-38). The weather was warm and sunny (37, 53). Plaintiff claims that while walking on the sidewalk in front of defendant’s 4 building his foot got caught on something that he had not previously seen causing him to fall to the ground and be injured (38). Plaintiff was not distracted as he approached the accident site and nothing was obstructing his view (52-53). He did not observe the object prior to his fall and was not aware of anyone else who had (47, 51). He had walked on this particular sidewalk hundreds of times in the more than twenty years he lived on Sheridan Avenue -- most recently only a day or two prior to the accident -- and never observed the object before his accident (46-47, 52). After falling plaintiff looked at the ground and noticed a small metal object, which he described as looking as though it was “screwed on in the concrete” (39). Plaintiff estimated that the object was a “[l]lttle lower than half an inch” in height and about the width of his thumbnail (39). Sheridan is a not-for-profit residential facility serving the physically and developmentally disabled (19). It was newly built on vacant land with construction winding up in March 2007 (18-119). After construction of the building was complete, Sheridan and the general contractor on the project, Artec Construction and Development Corp. (“Artec”), entered into a Change Order on June 25, 2007 modifying the existing construction contract to include Artec’s removal and replacement of 942 square feet of sidewalk in front of the facility (58-59). The work to the sidewalk was done in or about 5 June 2007 (27). Defendant emphasizes that there is no competent evidence on this record -- just pure speculation and conjecture on the part of the plaintiff -- that the metal object was installed or embedded in the sidewalk at the time it was replaced (39-40). In fact, there is no evidence whatsoever as to how, why, when or by whom the object was placed there. Plaintiff did not notify anyone at Sheridan of his alleged fall. In fact, Sheridan first learned of the incident when it was served with the Summons and Verified Complaint in August 2009 (51, 128, 130). Carole Gordon is the Director of Housing Development for the Bridge, Inc. (the “Bridge”), a closely related domestic not-for-profit corporation, which shares common corporate governance with Sheridan (116-117). On the about six times Ms. Gordon visited Sheridan between the facility’s opening in 2007 and the date of plaintiff’s accident she never saw any raised metal objects protruding from the sidewalk in front of the building (141). Upon learning of the alleged incident, Ms. Gordon contacted other employees at the building and instructed them to inspect the sidewalk in an attempt to locate the alleged defect (129-32). Olga Brito, the Area Director who supervises several Bridge programs, including Sheridan, searched for an object protruding from the sidewalk in front of 1413 Sheridan Avenue, but was unable to find anything fitting this description (129-31). Ms. Gordon also asked Director 6 of Facilities, Jennifer Williams, to inspect the sidewalk. She, too, reported to Ms. Gordon that she was unable to locate any such object (131-32). Ms. Gordon also confirmed that prior to plaintiff’s accident neither Sheridan nor the Bridge had received any complaints or otherwise been notified of an object protruding from the sidewalk in front of the Sheridan facility (141). Defendant lacked actual or constructive notice of the alleged defect Neither plaintiff who regularly walked on the subject sidewalk nor any of defendant’s employees, including the porters who, daily, swept or shoveled snow from the sidewalk, had ever seen the object prior to plaintiff’s accident. Moreover, as stated above, there is also no evidence as to how, when, why or by whom the object was placed there. Sheridan has continuously employed a full-time porter, whose responsibilities include cleaning and inspecting the sidewalk on a daily basis (137). Marvin Brownshin was Sheridan’s porter from March 2007 until September 2008 (205). Mr. Brownshin worked full-time, eight hour shifts Monday through Friday (207). When Mr. Brownshin arrived at work every morning he would clock-in and then clean in front of the building by sweeping the sidewalk and/or shoveling snow, as appropriate (206-207, 210). In the eighteen months that Mr. Brownshin worked as Sheridan’s porter he never observed anything fitting the description of the object that 7 plaintiff alleges caused his accident (210). Conrad Whyte succeeded Mr. Brownshin as Sheridan’s porter in September 2008 and was employed in that capacity at the time of plaintiff’s accident (214-215). He, too, worked a full-time Monday through Friday eight hour schedule, which began at 8:00 a.m. (Ibid.) First thing every morning upon arriving at work Mr. Whyte would “make sure the buildings – in front of the building is clean, so you won’t get a ticket” (Ibid.) This included sweeping the sidewalk or shoveling snow, as appropriate (Ibid.) During the six months Mr. Whyte worked as the Sheridan porter prior to plaintiff’s accident he never observed the alleged defect3 (RA 215). Photographs taken by both parties clearly show the object’s trivial nature The photographs produced by plaintiff in discovery (280-284) do not include measurements or dimensions of the alleged defect, and plaintiff was not aware of anyone having taken such measurements on his behalf (49-50). Given the absence of any evidence demonstrating the precise size of the object, a critical factor in determining whether an alleged defect is trivial and non-actionable as a matter of law, on or about December 2, 2010, at the direction of counsel for defendant, Arthur Pearson, an employee of the 3 Mr. Whyte testified that he first observed the defect sometime in January 2011, i.e. about twenty-one months after plaintiff’s accident, while shoveling the sidewalk during a snow storm (215). 8 predecessor4 to this law firm, travelled to the sidewalk adjacent to 1413 Sheridan Avenue to locate, measure and photograph the object (238). Relying upon plaintiff’s deposition testimony describing the shape, size and location of the object as well as the photographs produced by plaintiff, Mr. Pearson was finally able to locate it after about ten to fifteen minutes of inspecting the subject sidewalk (239). Mr. Pearson took photographs while measuring the object with a standard wooden ruler. He measured and photographed the height of the object to be between one-eighth and one- quarter of an inch5 (239, 253-257); he also measured the diameter to be approximately five-eighths of an inch (239, 258). Finally, Mr. Pearson took a photograph of the object next to a standard MTA Metrocard, and noted that it came up exactly to the bottom of the black magnetic strip on the face of the Metrocard (240). These photographs constitute persuasive, incontrovertible evidence conclusively demonstrating the de minimis and trivial nature of the “barely discernable” object. 4 At the time that defendant’s motion was filed through the pendency of plaintiff’s appeal to the Appellate Division, the undersigned was associated with the law firm of Kenny & Zonghetti, LLC. In June 2013, that firm merged with Kaufman, Dolowich & Voluck, LLP, defendant’s current attorneys of record. 5 Plaintiff incorrectly asserts that Mr. Pearson measured the height of the object to protrude three quarters of an inch above the surface of the sidewalk (Appellant’s Brief, p. 8). This misstatement of a critical fact erroneously conflates Mr. Pearson’s measurements by a magnitude of four times the actual height. 9 The opinions of plaintiff’s engineer are both inadmissible and unreliable Plaintiff in his brief inaccurately describes the opinions of his expert, Nicholas Bellizzi, as contained, alternatively, in his “testimony” or “affidavit” (Appellant’s Brief, pp. 6-7). Importantly, however, as noted by the motion court, plaintiff failed to submit any sworn expert opinions in opposition to defendant’s motion, but instead relied upon Mr. Bellizzi’s unsworn report. In addition to holding that Mr. Bellizzi’s unsworn opinions were inadmissible, the motion court further held they were unreliable because based upon an inspection performed over two years after the accident and after the object had already been removed (10). On May 20, 2011, more than two years after the alleged incident, nineteen months after plaintiff commenced this lawsuit, and seven months after plaintiff’s deposition, Nicholas Bellizzi, P.E., a consulting engineer based in Holmdel, New Jersey, travelled to the accident site to photograph and measure the object (163). By that time the object had already been removed out of an abundance of caution. While defendant submits that the motion court properly held that Mr. Bellizzi’s unsworn opinions are inadmissible and, thus, not properly before this Court, defendant, nevertheless, provides the following brief analysis of his opinions for the 10 benefit of the Court. It is readily apparent from even a cursory review of his report that Mr. Bellizzi’s mandate on this case from the start was, at all costs, to offer an opinion that defendant’s sidewalk contained a “substantial defect” and, thus, was non-compliant with NYCDOT § 2-09 (e)(4) and NYC Administrative Code §19-152 (4). Unfortunately for Mr. Bellizzi, such an opinion is entirely unsupportable in light of the uncontroverted facts of record. The two regulations relied upon by Mr. Bellizzi contain the following identical criteria for the existence of a “substantial defect”: “A trip hazard where the vertical distance between adjacent flags is greater than or equal to ½ inch or where a flag contains one or more surface defects of one inch or greater in all horizontal directions and is ½ inch or more in depth” (RA 165- 168). Since this case involves an alleged surface defect, not a height differential between adjacent flags, to qualify as a “substantial defect,” two things are required. It must measure: (a) one inch or greater in all horizontal directions; and (b) one half inch or more in depth. As is clearly depicted in the photographs taken by Mr. Pearson (253-258) and corroborated by plaintiff’s deposition testimony (38-39, 42), the cylindrical metal object measured five eighths of an inch in diameter (or “all horizontal directions”) 11 and about three sixteenths of an inch in height. Thus, it fails to satisfy either of the criteria required to qualify it as a “substantial defect.” Despite defendant having on December 3, 2010 sent plaintiff color copies of fourteen photographs depicting the object and measurements taken by Arthur Pearson while it was still in place (95-110), Bellizzi ignored them. Rather, in an apparent attempt to “fudge” measurements that would allow him to achieve his goal of concluding that the sidewalk contained a “substantial defect,” he chose to extrapolate estimated measurements based upon rough dimensions of the tool-marked area surrounding where the object had been prior to being ground down. As such, the majority of the Appellate Division held that his opinions were conclusory, speculative and not based upon foundational facts (333). Decision and Order of the Motion Court By Decision and Order dated July 23, 2012, the Supreme Court, Bronx County (Gonzalez, J.) granted summary judgment in favor of defendant. The motion court held: “defendant established that it lacked actual or constructive notice… but the plaintiff failed to meet his shifting burden. Defendant Sheridan’s motion for summary judgment is accordingly granted…” (12-13). 12 Decision and Order of the Appellate Division While the motion court chose to rest its decision granting defendant’s motion for summary judgment solely on lack of notice grounds, the Appellate Division not only affirmed that defendant lacked actual or constructive notice, but also held that the defect was trivial and non- actionable as a matter of law. In doing so the Court observed that: “the photographs reflect an object that is barely discernable since it does not appear to protrude significantly above the surface of the sidewalk. In fact, as indicated, plaintiff had never seen it before the accident, despite passing the location at least one hundred times” (334). DISCUSSION POINT I THE COURTS BELOW PROPERLY RULED THAT DEFENDANT MET ITS PRIMA FACIE BURDEN ESTABLISHING THAT IT LACKED NOTICE OF THE ALLEGED DEFECT WHICH PLAINTIFF FAILED TO REBUT Plaintiff tacitly concedes that defendant did not have actual notice of the defect, but argues that it should be charged with constructive notice. His arguments, however, are intrinsically contradictory and self-defeating. On the one hand, plaintiff argues that the object was “readily apparent” yet, in the next breath, argues it was “not readily visible.” It is well-settled that in order for a plaintiff in a slip-and-fall case to establish a prima facie case of negligence, he or she must demonstrate that 13 the defendant created the condition which caused the accident, or that the defendant had actual or constructive notice of the condition. See, Kraemer v. K–Mart Corp., 226 A.D.2d 590 (2d Dept. 1996). To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it. See, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837 (1986). On a motion for summary judgment to dismiss the complaint based upon lack of notice, the defendant is required to make a prima facie showing affirmatively establishing the absence of notice as a matter of law. See Goldman v. Waldbaum, Inc., 248 A.D.2d 436 (2d Dept. 1998). Defendant submits that the courts below properly held that it met this burden. Defendant submitted admissible testimony from three of its employees, including the two porters who performed regular, daily inspections of the sidewalk. These witnesses’ uncontroverted testimony established that they had never seen the object prior to plaintiff’s accident, and further that defendant had never received any complaints or been otherwise informed of its existence. What is more, as the majority of the Appellate Division noted, plaintiff’s own deposition testimony established that he, too, had never seen the object, despite having walked past the location hundreds of times. To the extent that plaintiff argues that 14 defendant’s burden requires a more detailed showing than this, he is mistaken. It is undisputed that plaintiff did not notify anyone at Sheridan of his alleged fall and that defendant first learned of the incident when it was served with the Summons and Verified Complaint four months later (RA 51, 128, 130). On similar facts, this court has held: “(O)n such a state of the record, it was incumbent upon plaintiff to show that defendant had either actual or constructive notice of the alleged dangerous condition. Asking anything more of a moving defendant in such circumstances on the issue of notice would skew the burden of proof, which is always on the plaintiff. A defendant's burden on the issue of notice on a summary judgment motion is met if he demonstrates the absence of a material issue of fact on the question.” Strowman v. Great Atl. & Pac. Tea Co., Inc., 252 A.D.2d 384 (1st Dept. 1998) (internal citations omitted). Defendant having met its prima facie burden of lack of notice, plaintiff, pursuant to Gordon, supra, was required to make a two part showing: (1) that the defect was “easily detected,” or “visible and apparent”; and (2) that it existed for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it. Id. With respect to Gordon’s first prong, it is undisputed that prior to the accident neither plaintiff nor any of defendant’s employees had seen the object, which the majority of the Appellate Division aptly described as “barely discernable”, and plaintiff’s own arguments conclusively demonstrate that the object was not visible, apparent nor readily detected, since he concedes that due to its 15 small size plaintiff could not reasonably have seen it. With respect to the second prong, while Justice Saxe writing for the dissent asserts that “other submissions tend to indicate that the piece of metal became embedded in the pavement when a new sidewalk was installed in June 2007, over two years before plaintiff’s accident,” aside from rank speculation on the part of plaintiff and his engineering expert, Nicholas Bellizi, P.E., whose opinions the motion court and Appellate Division, respectively, held were inadmissible and unreliable, there is absolutely no evidence on this record as to how, why, when or by whom the object was placed there, or whether its appearance or distance projecting above the surface of the sidewalk had changed over time due to physical forces, chemical reaction or any variety of other factors. Defendant does not dispute that it was under a duty to make a reasonable, visual inspection of the subject sidewalk. Personius v. Mann, 20 A.D.3d 616, 618, (App. Div.) aff'd as modified, 5 N.Y.3d 857, 840 N.E.2d 1024 (2005); Hayes v. Riverbend Hous. Corp., 40 AD3d 500, 501 (2007); see generally Basso v Miller, 40 NY2d 233, 241 (1976). Rather, defendant 16 respectfully submits that the courts below properly held that the deposition testimony of its porters established prima facie that it fulfilled this duty.6 In Burko v. Friedland, 62 A.D.3d 462 (1st Dept. 2009), another sidewalk defect case involving similar facts as the present, this Court held that defendant owners and lessee of the subject premises met their prima facie burden of proving lack of constructive notice based upon a similar, if less comprehensive, showing that defendant has made here. Specifically, the Court held: “In support of summary judgment, defendants testified that they had no knowledge of prior, similar accidents on the sidewalk in front of the premises, never saw the defective condition of the sidewalk and did not make any alterations to the sidewalk.” Likewise, in Arnold v. N.Y. City Hous. Auth., 296 A.D.2d 355, 355-356 (1st Dept. 2002), plaintiff claimed that she tripped on broken floor tiles in an apartment owned by New York City Housing Authority (NYCHA). NYCHA moved for summary judgment relying, in part, upon testimony of a maintenance worker who said that he had been in the apartment 6 To the extent plaintiff argues that defendant failed to meet its prima facie burden because it did not submit any evidence establishing when the sidewalk was last inspected prior to plaintiff’s accident, this is simply not true. Mr. Whyte provided unequivocal testimony that his first order of business every weekday was to clean the entire sidewalk when his shift began at 8:00 a.m. (214). Since plaintiff’s accident occurred on a Thursday, defendant has submitted uncontroverted testimony establishing that the sidewalk was inspected between two and three hours prior to the accident and the defect was not observed to be present at that time. 17 approximately five times prior to the date of the accident, did not see any broken tiles and that no one had complained about any such defect. The Court held: NYCHA satisfied its burden of establishing a lack of constructive notice through the testimony of the maintenance worker, and through the affidavit from the building's housing assistant that there was no record in the file of any complaints regarding broken tiles on or before the date of the accident. Id. (emphasis added); see also Lance v. Den-Lyn Realty Corp., 84 A.D.3d 470 (1st Dept 2011)7. Defendant has submitted substantial unrefuted evidence establishing that none of its employees had ever seen the defect or received complaints about it prior to plaintiff’s accident. Accordingly, the burden shifted to plaintiff to come forward with admissible evidence establishing that the object was “easily detected” or “visible and apparent” and that it existed for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy. Defendant respectfully submits that the courts below properly held that plaintiff failed to carry this burden. 7 See also Hayden v. Waldbaum, Inc., 63 A.D.3d 679, 679-680 (2d Dept. 2009); Denker v. Century 21 Dept. Stores, LLC, 55 A.D.3d 527 (2d Dept. 2008). 18 POINT II THE ALLEGED DEFECT WAS TRIVIAL AND NON-ACTIONABLE AS A MATTER OF LAW It is well-settled that the owner of a public passageway may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his or her toes, or trip over a raised projection." Trionfero v. Vanderhorn, 6 A.D.3d 903 (3d Dept. 2004) (emphasis added). It is equally clear that whether a dangerous or defective condition existed on a property as to create liability to the property owner is not always a question for a jury. Trincere v. Cty.of Suffolk, 90 N.Y.2d 976, 977 (1997). Although the inquiry is often fact specific, there are instances where “the trivial nature of the defect may loom larger than another element.” Ibid. In determining whether a particular case presents such a scenario, the Court will consider the “the width, depth, elevation, irregularity, and appearance of the defect along with the ‘time, place and circumstance’ of the injury.” Id. at 978. Although there is no specific factor that will make a defect actionable, generally the smaller the defect and the brighter the environment of the alleged injury will bear heavily on the defect being deemed trivial as a matter of law. Id. at 977-78 (holding that a cement slab that was elevated one-half inch above its surroundings, which plaintiff 19 tripped over during the daylight hours, was trivial as a matter of law); see also, Gaud v. Markham, 307 A.D.2d 845 (1st Dept. 2003) (concluding that where plaintiff tripped over a height differential of less than one inch during the daytime defendant was entitled to judgment as a matter of law); Burko, supra, 62 A.D.3d 462 (1st Dept. 2009) (holding that a sidewalk defect that measured five eighths of an inch deep, four inches long and two inches wide, which did not appear to be a trap or snare by reason of its location, adverse weather or lighting conditions or other circumstances, was trivial.) There is a virtual trove of cases from the Appellate Divisions applying Trincere to dismiss claims involving very similar facts to the present on trivial defect grounds. For instance, In Sokolovskaya v Zemnovitsch, 89 A.D.3d 918 (2d Dept. 2011), plaintiff was allegedly injured when she tripped and fell on a partially raised floor plank at a resort owned by the defendants. Plaintiff submitted an affidavit from her daughter who claimed the elevation differential was at least an inch. In affirming summary judgment in favor of defendant, the Appellate Division noted the daughter’s purported measurement was “unsupported by the photographs, which demonstrate, consistent with the testimony of the defendants' superintendent, that the elevation differential was less than one inch and closer to one quarter of an inch.” Id. (Emphasis added). Accordingly, the Appellate 20 Division held “the plaintiff failed to raise a triable issue of fact as to whether the alleged defect was trivial as a matter of law.” Id. Likewise, in Riley v. City of New York, 50 A.D.3d 344 (1st Dept. 2008), plaintiff tripped over the top edge of a cellar door that was slightly elevated above the sidewalk. Noting, as with the present case, that plaintiff’s own deposition testimony established that the accident occurred in daylight in an area that he traveled on a daily basis, the Appellate Division held that “(d)efendants' motion established prima facie entitlement to summary judgment on the ground that the alleged defect was trivial, did not constitute a trap or nuisance, and was not actionable as a matter of law.” Id.; see also Tavaras v. City of New York, 59 A.D.3d 178, (1st Dept. 2009) (holding plaintiff failed to establish that padlock affixed to cellar door constituted a trap or snare.) In another similar case, the Appellate Division affirmed summary judgment for defendant on trivial defect grounds where plaintiff allegedly tripped and fell over a raised manhole cover in the parking lot of premises owned by the defendant. Schenpanski v Promise Deli, Inc., 88 A.D.3d 982 (2d Dept. 2011). The Court in that case relied largely on the photographs submitted by defendant, which, like here, irrefutably showed the trivial nature of the alleged defect. Likewise, in Milewski v Washington Mut., Inc., 88 A.D.3d 853 (2d Dept. 2011), the alleged defect consisted, according to the plaintiffs, of a height 21 differential of between one and two inches between the asphalt surface of defendant’s parking lot and the concrete framing of a metal grate that straddled the parking lot and the public sidewalk adjoining the lot. The Court held: “Here, the evidence that the Bank defendants submitted in support of their motion, including several photographs of the claimed defect, established prima facie that, as a matter of law, under all the circumstances, including the weather conditions on the day of the injured plaintiff's fall, her unobstructed view of the claimed defect, and the appearance and location of the height differential, the claimed defect was trivial and therefore not actionable.” Id. at 856 (emphasis added). The one case cited by plaintiff that bears any meaningful similarities to the present is Meehan v. David J. Hodder, 113 A.D.3d 593 (2d Dept. 2004). In that case, plaintiff tripped over a metal pan, which was raised one quarter of an inch above the adjacent carpet. In affirming summary judgment for defendant, the Appellate Division held that defendant met its prima facie burden, which plaintiff failed to rebut, establishing the condition was a trivial defect, which did not constitute a trap or snare. Other cases cited by plaintiff have no application to the facts of this case. See, e.g., Munasca v. Morrison Mgmt. LLC, 111 A.D.3d 564, 564-65 (1st Dept. 2013) (holding defendant failed to meet its prima facie burden because the pictures submitted by defendants in support of their motion did not unequivocally demonstrate the size of the alleged defect); Brenner v. 22 Herricks UFSD, 106 A.D.3d 766 (2d Dept. 2013) (involving lengthy crack in pavement at least three quarters of an inch deep and four inches wide of at least two years’ duration); D’Amico v. Archdiocese of NY, 95 A.D.3d 601 (1st Dept. 2012) (plaintiff submitted sworn affidavit of engineer who measured the defect, which plaintiff had seen before, to be eleven sixteenths of an inch in height); Grundstrom v. Papadopolous, 117 A.D.3d 788 (2d Dept. 2014) (defendant failed to submit any objective measurements of defect). Finally, the dissent cites Argenio v. MTA, 277 A.D.2d 165 (1st Dept. 2000) in support of its opinion that the defect was not trivial as a matter of law. However, even a cursory review of that case shows that the circumstances surrounding plaintiff’s accident render it inapposite to the facts of this case. Plaintiff in Argenio fell and was injured shortly after alighting from a commuter train inside Grand Central Terminal during the morning rush hour. Id. She testified that at the time of the accident she was surrounded by fellow commuters. In finding questions of fact sufficient to defeat summary judgment, the Appellate Division noted that the prevailing facts and circumstances “render[ed] observation of the defect less likely.” Id. Clearly the Court’s holding in Argenio has absolutely no bearing upon this case. Few scenes in the United States are as frenetic as Grand Central 23 Terminal during rush hour. Mobs of travelers and commuters, frequently with luggage, move at a dizzying pace in all possible directions. Distractions abound. The same simply cannot be said for the sidewalk in front of 1413 Sheridan Avenue. In any event, plaintiff expressly admitted that he was not distracted as he approached the accident site, and nothing was obstructing his view. Here, the evidence overwhelmingly demonstrates both that the alleged defect is a “trivial” as a matter of law and that it is not a trap or snare. As the photographs of the object clearly show it was less than ¼ inch in height and approximately five eighths of an inch in diameter. Plaintiff had walked on the subject sidewalk well over one hundred times, as recently as one or two days before the accident, but never noticed the defect prior to his fall. Furthermore, his accident occurred on a bright and sunny spring morning when he was not distracted and nothing was obstructing his view. In sum, The trivial defect rule as articulated by this Court in Trincere, supra provides a practical, workable test that takes into consideration all pertinent facts and circumstances. It provides an important gate keeping function necessary to manage the volume of arguably frivolous cases that would certainly be brought if there were no threshold requirement before an alleged defect could be actionable. It has been and can continue to be 24 successfully and universally applied to innumerable factual scenarios. The new rule proposed by plaintiff if adopted would essentially render irrelevant the size and dimension of the object and impose liability on the defendant property owner as long as it was “firmly fixed in the ground.” Since the overwhelming majority of sidewalk defect cases involve fixed objects (raised sidewalk flags, manhole covers, basement access hatches, etc.), the result would be to eviscerate the gate keeping function that Trincere has dutifully served for almost thirty years, and to encourage the filing of even more frivolous lawsuits. POINT III THE MOTION COURT AND APPELLATE DIVISION PROPERLY HELD THAT THE REPORT OF PLAINTIFF’S ENGINEERING EXPERT WAS INADMISSIBLE AND UNRELIABLE Defendant submits that the below case law firmly supports the lower courts’ decisions holding the opinions of plaintiff’s engineer were inadmissible and unreliable. See e.g. Grasso v. Angerami, 79 N.Y.2d 813 (1991); see also Kearse v. New York City Transit Auth., 16 A.D.3d 45 (2d Dept. 2005) Stuart v. Ellis Hosp., 198 A.D.2d 559, 560 (3d Dept. 1993); Papineau v. Powell, 251 A.D.2d 924, 925 (3d Dept. 1998); Chase v. Cayuga Med. Ctr. at Ithaca, Inc., 2 A.D.3d 990, 991 (3d Dept. 2003). Figueroa v. Haven Plaza Hous. Dev. Fund Co., 247 A.D.2d 210, 210 (1st Dept. 1998) 25 (holding letter of the plaintiffs' purported expert was inadmissible, since it was unsworn and failed to outline the expert's qualifications) See Burko v. Friedland, 62 A.D.3d 462 (1st Dept. 2009) (holding the opinion of plaintiff's expert, based on the condition of the cited defect more than three years after the accident, would be insufficient to raise a triable issue of fact); Young v. Ai Guo Chen, 294 A.D.2d 430, 431 (2d Dept. 2002) (holding, the Supreme Court correctly disregarded the expert affidavit submitted by the plaintiffs, which was based on an inspection conducted approximately three years after the accident and photographs that were not properly authenticated); Kruimer v. National Cleaning Contrs., Inc., 256 A.D.2d 1 (1st Dept. 1998) (holding the expert's opinion should have been disregarded as conclusory inasmuch as it was based upon observations of the floor made over two years after the accident); see also Vazquez v JRG Realty Corp., 81 A.D.3d 555 (1st Dept. 2011) (holding plaintiffs' expert affidavit was speculative, conclusory, and not based on foundational facts, i.e., an exact measurement of the purported defect, and thus was insufficient to create an issue of fact). CONCLUSION For the foregoing reasons, defendant-Respondent respectfully requests that an Order be entered affirming in its entirety the motion court’s order granting summary judgment in its favor, along with any other and further relief as to this Court may seem just and proper. Respectfully submitted, KAUFMAN, DOLOWICII & VOLUCK, LLP Attorneys for Defendant-Respondent ~~\- .. '. 0 By: jdl .. (4(,_ \ U .. !.·;~II.)t~ Kevin J.r'Donn~lI, Esq~-- . I 21 Main\Street, §te 251 Hackensack, New ./ersey 07601 (201) 488-6655 60 Broad Street, Ste 3600A New York, New York 10004 26