Leonard Hutchinson, Appellant,v.Sheridan Hill House Corp., Respondent.

Brief

N.Y.September 17, 2015

APL-2014-00045 Bronx County Clerk’s Index No. 307060/09 Court of Appeals STATE OF NEW YORK LEONARD HUTCHINSON, Plaintiff-Appellant, against SHERIDAN HILL HOUSE CORP., Defendant-Respondent. >> >> BRIEF FOR PLAINTIFF-APPELLANT GETZ & BRAVERMAN, P.C Attorneys for Plaintiff-Appellant By: POLLACK, POLLACK, ISAAC & DE CICCO, LLP Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100Of Counsel: Michael Braverman Brian J. Isaac Date Completed: November 7, 2014 To Be Argued By: Brian J. Isaac Time Requested: 30 Minutes i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ........................................ ii PRELIMINARY STATEMENT ........................................ 1 JURISDICTION AND BACKGROUND .................................. 2 QUESTION PRESENTED FOR REVIEW ................................ 2 STATEMENT OF THE CASE ........................................ 3 The underlying accident ................................. 3 The sidewalk ............................................ 4 Expert testimony ........................................ 6 Motion for summary judgment ............................. 7 Order and decision in the trial court ................... 9 Appeal to the Appellate Division; decision ............. 10 DISCUSSION .................................................. 11 POINT I A DEFECT WHICH IS NOT READILY VISIBLE, AND CONSTITUTES A TRAP OR SNARE WHICH CAN CAUSE A PERSON TO TRIP, IS NOT TRIVIAL AS A MATTER OF LAW, EVEN WHERE IT IS SMALL ...................................... 11 POINT II WHEN CONSTRUED IN A LIGHT MOST FAVORABLE TO THE PLAINTIFF AS THE PARTY OPPOSING SUMMARY JUDGMENT, THE RECORD DOES NOT SUPPORT DEFENDANT’S ASSERTION THAT IT LACKED NOTICE OF THE METAL REMNANT THAT CAUSED PLAINTIFF’S ACCIDENT AS A MATTER OF LAW; THE DEFECT EXISTED FOR YEARS PRIOR TO THE ACCIDENT, AND WAS READILY APPARENT, SO THAT DEFENDANT’S AGENTS’ FAILURE TO SEE IT IS INCULPATORY UNDER THE GOVERNING CASE LAW ............................................... 18 CONCLUSION .................................................. 22 ii TABLE OF AUTHORITIES State Cases Adlam v. Konvalinka, 291 NY 40 [1943].......................... 9 Altz v. Leiberson, 233 NY 16 [1922]............................ 9 Alvarez v. Prospect Hospital, 68 NY2d 320 [1986].............. 16 Batton v. Elghanayan, 43 NY2d 898 [1978]...................... 13 Bennett v. New York City Tr. Auth., 3 NY3d 745 [2004].......... 9 Blake v. Albany Co., 48 NY2d 875 [1979]....................... 18 Bovino v. JR Equities, 55 AD3d 399 [1st Dept. 2008] ........... 16 Brenner v. Herricks UFSD, 106 AD3d 766 [2d Dept. 2013]........ 15 Bruno v. 732 Amsterdam Tavern, 2008 NY Misc. LEXIS 10349 [Sup. Ct. 20078] ............................................ 15 Bunce v. NYC, 261 AD 838 [2d Dept. 1941]....................... 3 Catalano v. Tanner, 23 NY3d 976 [2014], revsg., 112 AD3d 1299 [4th Dept. 2013] ....................... 20 City of New York, 60 NY2d 557 [1983].......................... 12 Clifford v. Dam, 81 NY 52 [1880]............................... 3 Colon v. Bet Torah, 66 AD3d 731 [2d Dept. 2009]............... 21 Cronson v. N. Hempstead, 245 AD2d 331 [2d Dept. 1997]......... 10 D'Amico v. Archdiocese of NY, 95 AD3d 601 [1st Dept. 2012] ............................................. 15 Delaney v. Philhern Realty, 280 NY 461 [1939].................. 3 Dowd v. Buffalo, 290 NY 895 [1943]............................ 11 Elliott v. E. 220 St., 1 AD3d 262 [1st Dept. 2003] ............ 11 Evans v. Pyramid Co., 184 AD2d 960 [3d Dept. 1992]............ 15 Fama v. City of New York, 118 AD3d 851 [1st Dept. 2014] ....... 19 Farrar v. Teicholz, 173 AD2d 674 [2d Dept. 1991]............... 3 iii Farrell v. Prentice, 206 AD2d 799 [3d Dept. 1994]............. 19 Fasano v. Green-wood Cemetery, 21 AD3d 446 [2d Dept. 2005] ............................................. 16 Fayolle v. E. Manhattan Portfolio, 108 AD3d 476 [1st Dept. 2013] ............................................. 14 George v. NYCTA, 306 AD2d 160 [1st Dept. 2003] ................ 14 Gomez v. Congregation K-hal Adath, 104 AD3d 456 [1st Dept. 2013] ............................................. 14 Gordon v. American Museum of Natural History, 67 NY2d 836 [1986] .......................................... 18 Grundstrom v. Papadopoulos, 117 AD3d 788 [2d Dept. 2014]...... 16 Hayes v. Riverbend, 40 AD3d 500 [1st Dept. 2007], lv. den., 9 NY3d 809 [2007] ................................. 20 Hecker v. NYCHA, 245 AD2d 131 [1st Dept. 1997] ................. 3 Herrera v. City of New York, 262 AD2d 120 [1st Dept. 1999] ............................................. 13 Hoffman v. UMC, 76 AD3d 541 [2d Dept. 2010]................... 21 Jacobsen v. Krumholz, 41 AD3d 128 [1st Dept. 2007] ............ 13 Kirby v. Mongomery Bros., 197 NY 27 [1909]..................... 8 Kumkumian v. NYC, 305 NY 167 [1953]........................... 19 Lamour v. Decimus, 118 AD3d 459 [2d Dept. 2014]............... 19 Lee v. Bethel First Church, 304 AD2d 798 [2d Dept. 2003] ............................................. 21 Lennard v. Mendik Realty, 8 NY3d 909 [2007]................... 20 Loughran v. NYC, 298 NY 320 [1948]............................ 11 Lowenstein v. Normandy Group, 51 AD3d 517 [1st Dept. 2008] .............................................. 3 Lupa v. City of Oswego, 117 AD3d 1418 [4th Dept. 2014] ........ 13 Lynch v. Beacon, 295 NY 872 [1946]............................ 11 iv Martyniak v. Charleston Ent., 118 AD3d 679 [2d Dept. 2014] ............................................. 14 Mazzella v. Bronze Plumbing, 194 AD2d 327 [1st Dept. 1993] .............................................. 3 McKenzie v. Crossroads Arena, LLC, 291 AD2d 860 [4th Dept. 2002] ................................ 13 Meehan v. Barksdale Tenants Corp., 73 AD3d 514 [1st Dept. 2010] .................................. 4 Meehan v. David J. Hodder, 13 AD3d 593 [2d Dept. 2004] ............................................. 14 Munasca v. Morrison Mgmt., 111 AD3d 564 [1st Dept. 2013] ............................................. 15 Narvaez v. 2914 Third Ave., 88 AD3d 500 [1st Dept. 2011] ............................................. 14 Negri v. Stop n Shop, 65 NY2d 625 [1985].................. 15, 18 Nin v. Bernard, 257 AD2d 417 [1st Dept. 1999] ............. 13, 14 Norbury v. Buffalo, 246 NY 605 [1927]......................... 11 Pagano v. Rite-Aid Corp., 266 AD2d 854 [4th Dept. 1999] ....... 15 Park v. Caesar Chemists, 245 AD2d 425 [2d Dept. 1997]......... 19 Personius v. Mann, 20 AD3d 616 [3d Dept. 2005], mod., 5 NY3d 957 [2005] ..................................... 21 Pratt v. Seneca Falls, 295 NY 690 [1945]...................... 11 Reynolds v. Knibbs, 15 NY3d 879 [2010], revsg., 73 AD3d 1456 [4th Dept. 2010] ........................ 19 Rivera v. 2160 Realty, 4 NY3d 837 [2005]...................... 20 Rivera v. 2300 X-tra Wholesalers, 239 AD2d 268 [1st Dept. 1997] ......................................... 11, 14 Rosati v. Kohl's Dep't Stores, Inc., 1 AD3d 674 [3d Dept. 2003] ............................................. 19 Sanchez v. State, 99 NY2d 247 [2002].......................... 18 v See also, Abreu v. NYCHA, 61 AD3d 420 [1st Dept. 2009] ........ 15 Shechtman v. Lappin, 161 AD2d 118 [1st Dept. 1990] ............ 13 Sievert v. Kingpin Enterprises, 55 AD3d 1406 [4th Dept. 2008] ............................................. 14 Smith v. NYC, 38 AD2d 965 [2d Dept. 1972]..................... 15 Sparks v. NYC, 31 AD2d 660 [2d Dept. 1968]..................... 3 Stubbs v. 350 E. Fordham Rd., 117 AD3d 642 [1st Dept. 2014] ............................................. 21 Taylor v. NYCTA, 48 NY2d 903 [1979]........................... 13 Taylor v. Yonkers, 105 NY 202 [1887]........................... 9 Teodorescu v. Resnick & Binder, PC, 14 NY3d 776 [2010] .......................................... 19 Tesak v. Marine Midland Bank, N.A., 254 AD2d 717 [4th Dept. 1998] ............................................. 13 Tese-Milner v. 30 E. 85 St., 60 AD3d 458 [1st Dept. 2010] ............................................. 14 Tkach v. Montefiore Hospital for Chronic Diseases, 289 NY 387 [1943] ............................................ 9 Torres v. Industrial Container, 305 AD2d 136 [1st Dept. 2003] ............................................. 16 Trincere v. Suffolk Co., 90 NY2d 976 [1997]................ 1, 12 Wade-Westbrooke v. Eshaghian, 21 AD3d 817 [1st Dept. 2005] .............................................. 4 Walters v. Costco Wholesale, 51 AD3d 785 [2d Dept. 2008]...... 19 Weigand v. United Traction Co., 221 NY 39 [1917]............... 5 Weller v. College of Senecas, 217 AD2d 280 [4th Dept. 1995] ............................................. 21 Wilson v. Jaybro Realty & Developmental Co., 289 NY 410 [1943] ........................................... 11 Wolosczynowski v. NY Central Bank, 254 NY 206 [1930].......... 19 vi Young v. NYC, 250 AD2d 383 [1st Dept. 1998] ................... 14 Zuckerman v. NYC, 49 NY2d 557 [1980].......................... 16 State Regulations 22 NYCRR §500.11............................................ 1, 2 34 RCNY 2-09.................................................. 14 Administrative Code §7-210.................................... 17 1 COURT OF APPEALS STATE OF NEW YORK ----------------------------------X Index #: 103807/10 Leonard Hutchinson, Plaintiff-Appellant APPELLANT’S BRIEF -against- Sheridan Hill House Corp., Defendant-Respondent ----------------------------------X PRELIMINARY STATEMENT Plaintiff-appellant, Leonard Hutchinson (the “plaintiff”), submits this brief in connection with his appeal as of right from the 3-2 decision of the Appellate Division, First Department dated October 22, 2013 (332-389) 1 which affirmed the order of the Supreme Court, Bronx County (Gonzalez, J.) July 23, 2012 and entered on July 27, 2012 (5-12), granting the motion of defendant-respondent Sheridan Hill House Corp. (hereinafter the “defendant”) for summary judgment dismissing the complaint based on a “trivial” defect pursuant to Trincere v. Suffolk Co., 90 NY2d 976 [1997]. This appeal is being perfected on a full record after this Court terminated its review pursuant to 22 NYCRR §500.11. For the reasons outlined herein, it is respectfully submitted that the orders appealed from should be reversed based 1 Numbers in parentheses refer to pages of the record on appeal. 2 on the existence of questions of fact which precluded the drastic remedy of summary judgment. JURISDICTION AND BACKGROUND The 3-2 decision of the Appellate Division on a question of law is appealable as of right; the case is in final repose; this Court previously accepted the appeal via letter memorandum pursuant to 22 NYCRR §500.11, and decided in favor of prosecution on a full record.2 Accordingly, all conditions precedent for having this case reviewed on the merits have been met. QUESTION PRESENTED FOR REVIEW Where a defect on a sidewalk is clearly capable of causing an individual to trip, and where it is inconsistent with the surrounding area, and where the person tripping on it did not see it and had no reason to suspect its presence, can a finding that it was trivial as a matter of law be sustained and a case therefore dismissed, merely because the defect is small? It is respectfully submitted that this question should be answered in the negative. 2 It is our understanding that this Court has accepted other appeals on the same issue so as to provide a better understanding of what is and is not a “trivial” defect. 3 STATEMENT OF THE CASE The underlying accident The basic facts are essentially undisputed. On the morning of April 23, 2009, the plaintiff, then 67 years old, was traversing the sidewalk in front of defendant’s building located at 1413 Sheridan Avenue, between 171 and 171 Street in the Bronx, when his toe got caught in a “metal piece sticking on the sidewalk” which was “screwed into the concrete.” The weather was clear (29, 32, 35, 37-8, 44-5, 286). Plaintiff landed on his left shoulder and sustained serious injuries (38, 47, 286, 298). The metal was “a little less than half an inch” high, and was about ½” wide; it appeared to be “part of the process of installing the concrete” and “should have been removed when the job was finished” (39-42). Plaintiff identified the defect as the round or cylindrical nut shown in various photographs (49- 50, 65-76, 96-109, 201, 281-84, 312-19). He saw it when he looked back while lying on the ground (46-48). 3 Some photos showed blood-stained concrete where plaintiff’s face landed when 3 A pedestrian is not obligated to anticipate a defect on a sidewalk (Delaney v. Philhern Realty, 280 NY 461 [1939]; Clifford v. Dam, 81 NY 52 [1880]; Sparks v. NYC, 31 AD2d 660 [2d Dept. 1968]). The First and Second Departments have held that plaintiff in a sidewalk trip and fall case is entitled to a charge on this issue (Lowenstein v. Normandy Group, 51 AD3d 517 [1st Dept. 2008]; Bunce v. NYC, 261 AD 838 [2d Dept. 1941]). It is enough for the pedestrian to look back and notice the defect after he trips (Hecker v. NYCHA, 245 AD2d 131 [1st Dept. 1997]; Mazzella v. Bronze Plumbing, 194 AD2d 327 [1st Dept. 1993]; Farrar v. Teicholz, 173 AD2d 674 [2d Dept. 1991]). Plaintiff testified that he was looking in front of him as he walked down Sheridan Avenue (52-53); this is in accord with how the accident occurred and in accord with the case law set forth herein. 4 he fell. He had walked in the area of the accident hundreds of times in the 23 years he lived there, but the record is not clear as to how many times he had done so after the sidewalk had been replaced in June 2007, about two years before the incident.4 The sidewalk Carole Gordon, the Director of Housing and Development for defendant’s corporate parent, testified that defendant Sheridan Hill House Corp. was a not-for-profit residential facility, which was erected in March 2007. On June 25, 2007, defendant and Artec Construction and Development Corp. (“Artec”) signed a Change Order to modify their existing construction contract for the replacement of 942 square feet of the sidewalk in front of the facility (116-19, 124-27, 158-159). After the accident, Ms. Gordon instructed Olga Brita, defendant’s regional director, and Tayena Pintor, defendant’s residence manager, to inspect the sidewalk for a defect that could cause someone to trip and fall. Both allegedly claimed that they were unable to locate the sidewalk defect at issue (120, 129-132). Ms. Gordon also spoke to Jennifer Williams, defendant’s facilities director, who had no knowledge of the incident (131). 4 That plaintiff did not notice the hazard until just prior to the accident does not establish defendant’s lack of notice (Meehan v. Barksdale Tenants Corp., 73 AD3d 514 [1st Dept. 2010]; Wade-Westbrooke v. Eshaghian, 21 AD3d 817 [1st Dept. 2005]. 5 Ms. Gordon visited the facility approximately six times from the time it was constructed in March 2007 up until April 23, 2009, the day of plaintiff’s accident (133). Yet when she received legal papers regarding plaintiff’s accident, she neither inspected the sidewalk nor inquired whether any employee had received complaints about the metal protrusion prior to plaintiff’s accident (135, 143). She never spoke to the porter responsible for cleaning the front of defendant’s location, where the accident occurred, at any time after learning of the incident (135, 143-46). Marvin Brownstein, and Conrad Whyte were defendant’s porters; they were responsible for maintaining the sidewalk. Mr. Brownstein testified that he worked at 1413 Sheridan Avenue from March 2007 through September 2008. Curiously, he had no recollection that the sidewalk had been replaced. He also could not recognize photographs of the sidewalk. He never observed the metal protrusion, which caused plaintiff to trip and fall (206-10).5 Mr. Whyte had worked for the defendant since March 2008; he apparently replaced Mr. Brownstein as a porter (214, 215). He too never noticed the metal protrusion in the front of 1413 Sheridan Avenue until the “last snow storm” in January of 2011 5 Of course, failure to see what is there to be seen is inculpatory and a statement to that effect is “incredible as a matter of law” (Weigand v. United Traction Co., 221 NY 39, 41 [1917]). 6 when he struck it with his shovel, causing its movement to stop immediately. This is an apt description of a hidden tripping hazard on a sidewalk. Mr. Whyte identified the defect on photographs, but could not say whether there had been any change in the condition of the area (214-16). Expert testimony The plaintiff’s expert engineer, Nicholas Bellizzi, P.E., inspected the metal defect in front on 1413 Sheridan Avenue on May 20, 2011 (163). At the time of his inspection, Mr. Bellizzi observed, “the subject protruding metal sidewalk defect had been removed in that it was cut down flush with the concrete pavement, thereby eliminating the unexpected, unanticipated and unwarned of metal protrusion that had existed at the time of Mr. Hutchinson’s trip and fall accident” (164). According to Mr. Bellizzi’s report, the concrete was in excellent condition “except for the unmarked, unwarned of, unexpected and unanticipated protruding metal stub. The metal protrusion, prior to being cut down, had a “round metal pipe shape with an approximately 1¼-inch diameter. Visible signs of a 4½-inch diameter concrete core sample was located approximately twelve (12) feet from the subject defect (164, 168). This showed that a concrete core sample was extracted from the subject sidewalk flag in very close proximity to the subject defect, only 12 inches away from the core. “Scrape or 7 grind marks were located on both sides of the cut metal pipe embedded in the concrete, indicating that the protruding pipe had been either cut flush or ground down flush with the surface of the concrete” (164). Mr. Bellizzi opined that the defect was a substantial defect as defined under 34 RCNY 2–09(f)(5), and that the condition violated §19-152 of the Administrative Code regarding sidewalk safety (166-68). Mr. Bellizzi also affirmed that there was a height differential greater than one inch, which was not de minimus and sufficed to constitute a trip hazard, not readily visible due to the condition of the rest of the sidewalk (168). Motion for summary judgment Defendant moved for summary judgment, asserting that the metal defect was trivial in nature and thus not actionable, as it measured 5/8” in diameter and, 1/4” in height”; that it did not have notice of the defect; and that it was created by independent contractor over which defendant neither had nor exercised control (16-18). In support of its motion, defendant submitted the affidavits of Al Rapport, defendant’s hired adjuster/ investigator (236-237) and Arthur Pearson, an employee and “all- purpose staff member” of the defendant’s law firm, who inspected, measured and photographed the accident site on December 2, 2010 (238-241). 8 Mr. Rapport stated that he inspected the accident site on January 13, 2010, almost nine months after the incident (236). He observed a “metal bolt/screw-like object - consistent with plaintiff’s allegations - protruding from the sidewalk attendant to the 1407 Sheridan Avenue property” which did not belong to the defendant. Mr. Rapport inspected the wrong location, as the defect that caused plaintiff’s fall was located in the sidewalk abutting the defendant’s property at 1413 Sheridan Avenue (237). In his affidavit, Mr. Pearson stated that he inspected, measured and photographed the accident site on December 2, 2010, approximately eight months after plaintiff’s accident (238-239). He located the defect after searching for ten to fifteen minutes (239). He measured its diameter using a standard ruler and determined that it was approximately 5/8” in diameter and stood 3/4” above the surface of the sidewalk (239-58). In opposition, plaintiff pointed out that the defect was inconsistent with the pristine condition of the sidewalk as a whole creating a clear tripping hazard in the nature of a trap or snare, and that the porters should have noticed the metal while maintaining the sidewalk (265-68).6 6 The focus of this case lies in whether the defect that caused plaintiff’s accident was “trivial” as a matter of law. The Appellate Division also briefly mentioned that defendant had no notice of the defect. We submit that there is no tenable defense of lack of notice as a matter of law, for defendant is responsible for the failure of its employees to see what ought to have been seen in the exercise of reasonable care. See, Kirby v. Mongomery Bros., 197 NY 27, 31 [1909] (“Whatever source of danger the master would discover by reasonable inspection, he is presumed to know, and constructive 9 Thus, the defect was not readily observable by the plaintiff, and plainly constituted a trap or snare (273-78). Moreover, the failure of defendant’s employees to notice the defective metal bolt sticking up from the ground did not give rise to a finding of lack of notice sufficient to entitle defendant to summary judgment. Order and decision in the trial court In a decision and order dated July 23, 2012, the Supreme Court, Bronx County granted defendant’s motion for summary judgment and dismissed the complaint (4-13). Despite the fact that defendant failed to offer any evidence as to when the subject area was last inspected, the trial court determined that defendant established that it lacked actual or constructive notice of the defect and that Mr. Bellizzi’s testimony was conclusory as it did not include measurements of the defect (though it was uncontested that defendant had already shaved it down) and that the defect was not actionable. notice, through the lapse of time, has the same effect as discovery by actual inspection”); Adlam v. Konvalinka, 291 NY 40, 43 [1943] (Defendant presumed to know danger a reasonable inspection would disclose); Blake v. Albany, 48 NY2d 875, 877 [1979] (Negligent failure to discover condition “can be no less a breach of due care than a failure to respond to actual notice”). This theory of constructive notice was affirmed by this Court in the 1800s (Taylor v. Yonkers, 105 NY 202, 205 [1887]), the 1900s (Altz v. Leiberson, 233 NY 16, 18 [1922]) and the 2000s (Bennett v. New York City Tr. Auth., 3 NY3d 745 [2004]). In this vein, a defendant ordinarily cannot escape his responsibility for premises maintenance by voluntarily absenting himself from the building or by not performing a legally mandated duty (Tkach v. Montefiore Hospital for Chronic Diseases, 289 NY 387 [1943]). 10 Appeal to the Appellate Division; decision Plaintiff appealed, asserting that the trial court’s order was erroneous. After fully briefing the issue and having completed oral argument, the Appellate Division affirmed in a 3- 2 decision, so that plaintiff was able to appeal to this Court as of right (332-39). The majority held that plaintiff failed to demonstrate that the defect constituted a tripping hazard; it was only 5/8” in diameter and protruded only 3/16” above the surface; plaintiff failed to show that it constituted a trap or snare based on location, lighting, etc., Mr. Bellizzi’s affidavit was insufficient as he visited the site two years after the accident when the “condition had been corrected”; defendant lacked notice based on the testimony of the cleaners.7 The dissent found that the photographs and testimony established that plaintiff tripped on a hard “edge”; the record permitted the inference that the defect arose when the new sidewalk was installed in 2007. That the porters did not notice 7 Cronson v. N. Hempstead, 245 AD2d 331 [2d Dept. 1997], shows that these conclusions are erroneous. There, plaintiff tripped and fell on a tennis court due to a crack he remembered as being 1.5” long, ¼-1/3” wide and 1/3” deep. A motion to dismiss based on primary assumption of risk was denied; the Second Department affirmed, taking note of evidence that the area was “flawless” (conflicting with the “open and obvious” argument). Here, similarly, if the defect was not readily apparent according to defendant’s witnesses, it cannot be “trivial”, since plaintiff had no way of noticing it, thus establishing its quality as a “trap” or “snare.” The defect is clearly apparent in photographs in the record, and was sufficient to stop the motion of a shovel according to defendant’s witnesses. Thus, we submit, it cannot be trivial as a matter of law. 11 the defect did not establish absence of constructive notice. The dissent cited Rivera v. 2300 X-tra Wholesalers, 239 AD2d 268 [1st Dept. 1997] (Denial of summary judgment affirmed where metal plate was ½” higher than the floor) and Elliott v. E. 220 St., 1 AD3d 262 [1st Dept. 2003] (Issues of fact on 1” x ½” hole in stair tread which could catch a shoe heel). We believe the dissent at the Appellate Division got it precisely right, and ask this Court to reverse the Appellate Division and deny summary judgment. DISCUSSION POINT I A DEFECT WHICH IS NOT READILY VISIBLE, AND CONSTITUTES A TRAP OR SNARE WHICH CAN CAUSE A PERSON TO TRIP, IS NOT TRIVIAL AS A MATTER OF LAW, EVEN WHERE IT IS SMALL This Court has long held that there is no minimum height or specific shape requirement to establish that a hazard in a public way constitutes a defect for which tort liability can be imposed. See, Loughran v. NYC, 298 NY 320 [1948]; Pratt v. Seneca Falls, 295 NY 690 [1945]; Lynch v. Beacon, 295 NY 872 [1946]; Dowd v. Buffalo, 290 NY 895 [1943]; Norbury v. Buffalo, 246 NY 605 [1927]. “There is no rule that a hole in a public thoroughfare must under all circumstances be a particular depth before its existence can give rise to a legal liability” (Wilson v. Jaybro Realty & Developmental Co., 289 NY 410, 412 [1943]). 12 The lead case, of course, is Trincere v. County of Suffolk, 90 NY2d 976 [1997], wherein this Court noted that there were some defects which did not rise to the level of a defective condition so as to give rise to liability. See also, Hecht v. City of New York, 60 NY2d 557, 561 [1983]. This Court in Trincere specifically noted that the determination must be made based on the “peculiar facts and circumstances of each case” and is “generally a question of fact for the jury.” Any mechanistic disposition based exclusively on size is unacceptable; the court must examine all “facts presented, including the width, depth, elevation, irregularity and appearance of the defect” along with the “time, place and circumstance” of the injury (90 NY2d at 977-8). Here, defendant’s own proof and the majority’s own reasoning establish that the defect was not trivial – and certainly not trivial as a matter of law for purposes of granting summary judgment. The photographs show a bolt in the sidewalk, which would not be readily apparent to one walking on a sidewalk, who has a right to anticipate that is free of defects (Delaney v. Philhern Realty, supra). The rest of the sidewalk is pristine, so there is no warning of a need to exercise any degree of caution in using it. Photographs can be used to establish a defect and its existence over a sufficient period of time to have been noticed 13 and corrected in the exercise of reasonable care. See, Taylor v. NYCTA, 48 NY2d 903 [1979]; Batton v. Elghanayan, 43 NY2d 898 [1978]. Where a sidewalk defect is abrupt, irregular and solidly fixed, whether it is trivial is ordinarily held to present a question of fact for the jury. See, (Lupa v. City of Oswego, 117 AD3d 1418 [4th Dept. 2014]; Jacobsen v. Krumholz, 41 AD3d 128 [1st Dept. 2007]; Herrera v. City of New York, 262 AD2d 120 [1st Dept. 1999]; McKenzie v. Crossroads Arena, LLC, 291 AD2d 860 [4th Dept. 2002]). A shallow defect can be actionable where, as here, its edges are sharp or fixed (Nin v. Bernard, 257 AD2d 417 [1st Dept. 1999]). A person’s ability to see the condition is also an important factor in determining “triviality” (Tesak v. Marine Midland Bank, N.A., 254 AD2d 717 [4th Dept. 1998]). Where, it is not disputed that the defect was not readily observable, so it could be a trap or snare which would catch the foot of a pedestrian, even if he or she was using appropriate care, triviality cannot be summarily determined. See, Shechtman v. Lappin, 161 AD2d 118 [1st Dept. 1990]. Here, defendant’s own representatives did not see the metal object fixed in the sidewalk for years, and acknowledged that it was sufficiently hard, abrupt and jagged so that it could stop a shovel instantly upon contact. We therefore fail to see how defendant can argue that the defect is trivial as a matter of law. 14 Admittedly, the law on this subject is uneven (Fayolle v. E. Manhattan Portfolio, 108 AD3d 476 [1st Dept. 2013]). However, the First Department itself has found that defects less than ½” high may be actionable (Rivera v. 2300 X-tra Wholesalers, supra; see also, Sievert v. Kingpin Enterprises, 55 AD3d 1406 [4th Dept. 2008]; Nin v. Bernard, supra). The same is true of defects around ½” high. See, Young v. NYC, 250 AD2d 383 [1st Dept. 1998]. In Gomez v. Congregation K-hal Adath, 104 AD3d 456 [1st Dept. 2013], the Appellate Division that decided this case held that there were triable issues as to whether a ½” differential between sidewalk flags was a “substantial defect” under 34 RCNY 2-09 and Administrative Code §19-152[a][4],[a-1][5]. A metal protrusion is not trivial where it traps a persons foot, resulting in a fall (Martyniak v. Charleston Ent., 118 AD3d 679 [2d Dept. 2014]); where plaintiff while walking straight ahead trips on a fixed metal object different from its surroundings, a determination that the defect is trivial as a matter of law does not comport with accepted precedent (Narvaez v. 2914 Third Ave., 88 AD3d 500 [1st Dept. 2011]; George v. NYCTA, 306 AD2d 160 [1st Dept. 2003]; Tese-Milner v. 30 E. 85 St., 60 AD3d 458 [1st Dept. 2010]). Summary judgment is proper only where the defect at issue does not have any of the characteristics of a trap or snare (Meehan v. David J. Hodder, 13 AD3d 593 [2d Dept. 2004]). 15 In Munasca v. Morrison Mgmt., 111 AD3d 564 [1st Dept. 2013], the Appellate Division, First Department reversed summary judgment for the defendant, finding that its papers did not demonstrate that the defect was trivial, since the photographs indicated a possible tripping hazard. See also, Abreu v. NYCHA, 61 AD3d 420 [1st Dept. 2009]. A defect in a highly trafficked area is normally not to be adjudged trivial as a matter of law where it is not readily avoidable and where it can form a tripping hazard (Brenner v. Herricks UFSD, 106 AD3d 766 [2d Dept. 2013]. In any event, the determination is fact-specific, so that each case stands on its own (Evans v. Pyramid Co., 184 AD2d 960 [3d Dept. 1992]; see generally Smith v. NYC, 38 AD2d 965 [2d Dept. 1972]). An expert’s report or opinion that a defect is substantial, according to the First Department itself, undermines defendant’s application for summary judgment (D’Amico v. Archdiocese of NY, 95 AD3d 601 [1st Dept. 2012]). Again, there is no rule that a condition must be of a certain size in order to be actionable (Platkin v. Nassau Co., 2014 NY AD LEXIS 6934 [2d Dept. 2014]). It is enough if the defect has the character of a trap or snare (Pagano v. Rite-Aid Corp., 266 AD2d 854 [4th Dept. 1999]) or is not readily visible to passersby (Negri v. Stop n Shop, 65 NY2d 625 [1985]; Bruno v. 16 732 Amsterdam Tavern, 2008 NY Misc. LEXIS 10349 [Sup. Ct. 20078]). Defendant had the obligation to prove, in its initial motion papers, that the defect was trivial as a matter of law (Grundstrom v. Papadopoulos, 117 AD3d 788 [2d Dept. 2014]); accordingly, summary judgment should have been denied in this case (Bovino v. JR Equities, 55 AD3d 399 [1st Dept. 2008]; Fasano v. Green-wood Cemetery, 21 AD3d 446 [2d Dept. 2005]) because defendant failed to meet its initial burden (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Zuckerman v. NYC, 49 NY2d 557 [1980]), and therefore the motion should have been denied, even without consideration of the sufficiency of plaintiff’s papers. It is not enough, of course, to point merely to gaps in plaintiff’s proof (Torres v. Industrial Container, 305 AD2d 136 [1st Dept. 2003]). Here, assuming this Court finds that defendant met its initial burden, there was sufficient evidence to the contrary so that the motion should have been denied. Defendant’s own representatives, who cleaned the area, claimed they did not see the defect. The rest of the sidewalk was in excellent condition, so that the bolt was not to be expected. The defect, as shown on photographs, had an abrupt edge, was irregular in shape and firmly inserted into the sidewalk, well capable of ensnaring a pedestrian’s foot (or a snow shovel). Plaintiff had 17 no reason to expect or guard against the defect, and was not required to look down at his feet while walking. As a matter of policy, it is not unduly burdensome to require a landowner to properly maintain a sidewalk abutting his premises, as set forth in Administrative Code §7-210. Maintenance personnel who cleaned the sidewalk constantly had the ability to see the defect; thus, defendant can be found to have had constructive notice of same and an opportunity to remedy it prior to plaintiff’s accident. We propose that this Court adopt the following rule with regard to trivial defects: “A defect on a public way is not trivial as a matter of law where it is not to be expected by a pedestrian, not readily seen in the ordinary course, inconsistent with its surroundings, firmly fixed in the ground, and of an abrupt or uneven nature, such that it is capable of catching a pedestrian’s shoe, causing him or her to become unbalanced.” This, combined with the existing case law, would bring uniformity to an area that has long defied classification and has seen inconsistent results and split decisions like the one in this case. 18 POINT II WHEN CONSTRUED IN A LIGHT MOST FAVORABLE TO THE PLAINTIFF AS THE PARTY OPPOSING SUMMARY JUDGMENT, THE RECORD DOES NOT SUPPORT DEFENDANT’S ASSERTION THAT IT LACKED NOTICE OF THE METAL REMNANT THAT CAUSED PLAINTIFF’S ACCIDENT AS A MATTER OF LAW; THE DEFECT EXISTED FOR YEARS PRIOR TO THE ACCIDENT, AND WAS READILY APPARENT, SO THAT DEFENDANT’S AGENTS’ FAILURE TO SEE IT IS INCULPATORY UNDER THE GOVERNING CASE LAW Assuming the issue is properly before this Court, defendant did not establish prima facie entitlement to judgment as a matter of law as to whether it had notice of the defect; if it did, triable issues of fact are present on this record precluding the grant of summary judgment in defendant’s favor. The owner or possessor of real property has constructive notice of a defect which is detectable upon reasonable inspection, and exists long enough to permit it to be discovered and remedied prior to the accident in the exercise of reasonable care (Gordon v. American Museum of Natural History, 67 NY2d 836 [1986]; Negri v. Stop n Shop, supra). Actual notice, of course, exists where defendant knows of the condition. The determination of constructive notice is case-specific (Sanchez v. State, 99 NY2d 247 [2002]). And pursuant to Weigand v. United Traction Co., supra, failure to see what is there to be seen is negligence. This Court in Blake v. Albany Co., 48 NY2d 875, 877 [1979], held that photographs can show that the condition arose over time and defendant should have seen it, and that negligent failure to discover such a condition is as much 19 of a breach of due care as failure to respond to actual notice. See also, Farrell v. Prentice, 206 AD2d 799 [3d Dept. 1994]. Defendant is held to know what he would have discovered by inspection (Kirby v. Montgomery Bros., supra; Adlam v. Konvalinka, supra); knowledge may be established through circumstantial evidence even in the face of “professions of ignorance” (Kumkumian v. NYC, 305 NY 167 [1953], quoting Wolosczynowski v. NY Central Bank, 254 NY 206 [1930]). Presence at the site leads to the inference that defendant should have noticed the condition (Walters v. Costco Wholesale, 51 AD3d 785 [2d Dept. 2008]; Park v. Caesar Chemists, 245 AD2d 425 [2d Dept. 1997]). Lack of constructive notice is not established absent specific proof that inspections were actually made and at what time they were made (Lamour v. Decimus, 118 AD3d 459 [2d Dept. 2014]; Fama v. City of New York, 118 AD3d 851 [1st Dept. 2014]; Gilberti v. Town of Spafford, 2014 NY AD LEXIS 3315 [4th Dept. 2014]; Rosati v. Kohl’s Dep’t Stores, Inc., 1 AD3d 674 [3d Dept. 2003]; Teodorescu v. Resnick & Binder, PC, 14 NY3d 776 [2010]). In Reynolds v. Knibbs, 15 NY3d 879 [2010], revsg., 73 AD3d 1456 [4th Dept. 2010], plaintiff was descending stairs to a basement when he fell and was injured. He submitted expert affidavits showing that the stairs were improperly secured and the defect would have been, according to the dissent at the 20 Appellate Division, “obvious upon inspection by anyone with construction experience.” Plaintiff submitted testimony that a principal of defendant had inspected the stairs prior to plaintiff’s tenancy and had experience in the field. The trial court denied defendant’s motion for summary judgment, but the Fourth Department reversed. This Court, on appeal, reinstated the trial court’s order, finding that the issue of notice was one of fact for the jury. Defendant was required to establish lack of constructive notice as a matter of law in the first instance in order to establish its prima facie entitlement to judgment as a matter of law; thus the motion was improperly granted. See, Lennard v. Mendik Realty, 8 NY3d 909 [2007]. This is not a case where the condition could have arisen minutes or seconds before the accident (Rivera v. 2160 Realty, 4 NY3d 837 [2005]). This Court’s reversal of the Fourth Department’s grant of summary judgment in Catalano v. Tanner, 23 NY3d 976 [2014], revsg., 112 AD3d 1299 [4th Dept. 2013] establishes, we submit, that summary judgment should not have been granted to defendant based on the evidence on this record. We note that a landowner is required to conduct reasonable inspections to identify defective conditions, especially where an object capable of deteriorating is concealed from view (Hayes v. Riverbend, 40 AD3d 500 [1st Dept. 2007], lv. den., 9 NY3d 809 21 [2007]; Personius v. Mann, 20 AD3d 616 [3d Dept. 2005], mod., 5 NY3d 957 [2005]; Weller v. College of Senecas, 217 AD2d 280 [4th Dept. 1995]). Defendant asserted that its employees were in the area and did not notice the condition. But photographs show that they would have seen it had they been looking (Stubbs v. 350 E. Fordham Rd., 117 AD3d 642 [1st Dept. 2014]). A landowner may be liable for failing to conduct inspections that would have revealed a defect (Hoffman v. UMC, 76 AD3d 541 [2d Dept. 2010]; Colon v. Bet Torah, 66 AD3d 731 [2d Dept. 2009]), though that rule does not apply in every case (Lee v. Bethel First Church, 304 AD2d 798 [2d Dept. 2003]). Here, the photographs establish that defendant simply failed to see a condition that should have been discovered, especially since it arose when the sidewalk was replaced long before plaintiff’s accident. There is thus no basis for a claim that defendant did not have notice of the defective condition that caused plaintiff’s accident as a matter of law. 22 CONCLUSION Based upon the forgoing, it is respectfully submitted that the trial court’s order should be reversed in all respects and the complaint reinstated in its entirety. Respectfully submitted, GETZ & BRAVERMAN, PC Attorneys for Plaintiff-Appellant By: ________________________________ Brian J. Isaac, Esq. POLLACK, POLLACK, ISAAC & DECICCO, LLP Appellate Counsel 225 Broadway, Suite 307 New York, New York 10007 212-233-8100 Michael Braverman, Esq. Brian J. Isaac, Esq. Of Counsel