Leonard Hutchinson, Appellant,v.Sheridan Hill House Corp., Respondent.BriefN.Y.September 17, 2015* 4 •• * I fS.7C *. 2! BOI)W .% Si i r. :7 FRM . k NI SORI. \‘ A. A 1 22-233-8100 .. / \ / ‘\ # I \\ 2 2-233-”238 ‘(LSOs 3. ‘.1 ‘LlRIl) 4. a lH WI’ST( FS11 ft OFFit l.I3, RO11 ‘S - KS ILt,,!’S l. OSkOV0 0 ‘ 4. 4- sO M5 .\IiONI-c’1 3v[:Ntt‘.1 Ui 400.4’’ I 000 POLLACK, POLLACK, ISAAC & DECICCO, LLP At t or 0 C t d \ 014 41)1 June 25, 2014 Via Overnight Mail Court of Appeals State of New York 20 Eagle Street Albany, NY 12207-1095 Att.: Andrew W. Klein, Chief Clerk & Legal Counsel to the Court Re: Hutchinson v. Sheridan Hill 1-louse Corp. Index #207060/09 APL-20 14-00045 Dear Mr. Klein: This office is appellate counsel to Getz & Braverman PC, attorneys for the plaintiff- appellant in this matter. We submit this letter memorandum pursuant to the Court’s scheduling order and 22 NYCRR §500.11 to explain why the defect over which the plaintiff fell was not trivial as a matter of law. This issue is recurring and important, and we believe this Court, as a matter of public policy, should review it and hold that plaintiff’s case is not susceptible to summary dismissal. See, Sciolina v. Erie Preserving Co., 151 NY 50 [18961; 22 NYCRR §500.22 [bI [41. In addition, we will show that the defendant did not, and, indeed, could not, establish on this record that it did not have notice of the defective condition as a matter of law such that summary judgment could be entered in its favor. THE ACCIDENT; TESTIMONY AND EVIDENCE On April 23, 2009, plaintiff, who lived at in the Bronx and was 67 years old, left his apartment at 10-1 1 AM and headed for a supermarket two blocks away. The weather was clear. He testified that his right foot became caught on a “metal piece sticking on the sidewalk” which was “screwed on in the concrete” and this caused him to trip and fall in front of 1413 Sheridan Avenue which was between 170th and l7S Street (Record on appeal, pp. 29, 32, 35, 37-38, 44-45, 286). Plaintiff landed on his left shoulder and sustained serious injuries (38, 47, 286, 298). According to plaintiff, the metal was “a little less than half an inch” high and about ½” wide; it appeared to be “part of the process of installing the concrete” of the sidewalk itself, and “should have been removed when [the] job was finished” (39-42). He first observed the object when he looked back while lying on the ground (4648).1 Plaintiff identified the defect and circled it on photographs taken shortly after the accident (49-50, 65-76, 281-84, 312-19). Some showed bloodstained concrete where his face landed. He had walked over the area hundreds of times in the 23 years he lived in the area, but the record is not clear how many times he had done so after the sidewalk was renovated in the summer of 2007. Carole Gordon, Director of Housing and Development for defendant’s corporate parent, testified that defendant, Sheridan Hill House Corp., was a not for profit residential facility. The Sheridan Avenue building abutting the sidewalk where plaintiff fell was erected in March of 2007; in June 2007, Ar-Tec Construction and Development Corp. signed a change order to modify a contract for the replacement of 942 square feet of sidewalk in front of the facility (116- 19, 124, 127, 158-59). On being made aware of the accident, Ms. Gordon instructed Olga Brita, defendant’s regional director, and Tayena Pintor, defendant’s residence manager, to inspect the sidewalk for a tripping defect — both claimed they were unable to locate one (120, 129-32). Ms. Gordon also spoke to Jennifer Williams, defendant’s facilities director, who had no knowledge of the incident (131). She visited the facility about six times up until the day of the accident (133). Yet on receiving legal papers regarding plaintiff’s accident, she did not inspect the sidewalk or inquire about prior complaints; she never spoke to the porter responsible for cleaning the area (135, 143-46). Marvin Brownstein and Conrad Whyte were defendant’s porters, responsible for maintaining the sidewalk. Mr. Brownstein worked at the premises until September 2008; he had no recollection that the sidewalk had been replaced, and could not recognize photographs, other than pictures of the building he worked in; he never noticed the sidewalk protrusion that caused plaintiff to trip and fall (206-210). Mr. Whyte began work at the premises in March 2008; he never noticed the protrusion until the “last snow storm” in January 2011 when he saw a “little piece of metal sticking above the ground” which he struck with his shovel; the configuration, shape and design of the protrusion was sufficient to stop the forward progress of the shovel in its tracks (2 14-16). Thus, he established that the defect could serve as a tripping or sticking hazard. And, of course, if porters who swept the sidewalk on a regular basis did not notice the defect for years, someone who looks straight ahead while walking surely could miss it as well. Mr. Whyte actually identified the defect in the photographs, but could not say whether there had been any change in the condition of the area (215-16). A pedestrian is not obligated at all times to keep in mind a defect on a sidewalk or roadway (See, Bunce v. NYC, 261 AD 838 [2d Dept. 19411; Delaney v. Philhem Realty, 280 NY 461 [1939]; Clifford v. Dam, 81 NY 52 [1880]; Sparks v. City of New York, 31 AD2d 660 [2 Dept. 1968]; see generally, Lowenstein v. Normandy Group. LLC. 5! AD3d 517 [1st Dept. 2008]; Hecker v. New York City Hous. Auth., 245 AD2d 131 [1st Dept. 1997]. A plaintiff can therefore establish causation even where he does not see the defect, where he looks back after tripping over it. See, Mazzella v. Bronze Plumbing & Heating Corn, 194 AD2d 327 [1st Dept. 1993]; Farrar v. Teicholz. 173 AD2d 674 [2d1)ept. 1991]. Here, plaintiff’s testimony that he was looking “in front” and “looking where he was going” as he walked down Sheridan Avenue (52-53) is consistent with how the accident occurred, and in accord with the case law adumbrated herein. Nicholas Bellizzi, plaintiff’s expert, inspected the area on May 20, 2011, and wrote that 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.” The sidewalk was otherwise in excellent condition. Prior to being cut down, the protrusion had a “round metal pipe shape with an approximate 1 ¼” diameter. Visible signs of a 4 ‘/2” diameter concrete core sample was located approximately 12” from the defect.” This showed that a concrete core sample was extracted only 12” from the defect; “Scrape or grind marks were located on both sides of the cut metal pipe embedded in the concrete”; this indicated that the “protruding pipe had been either cut flush or ground down flush with the surface of the concrete” (164). The defect was “substantial” as defined in 34 RCNY §2-09[f][51 and violated §19-152 of the Administrative Code (166-68). Mr. Bellizzi pointed out that the defect had “an uneven and irregular vertical height differential and horizontal differential greater than 1”, which was not de minimus;” it was sufficient to be classified as a trip hazard, and was not readily visible due to the condition of the rest of the sidewalk (168). MOTION FOR SUMMARYJUDGMENT. Defendant moved for summary judgment, asserting that the defect, being only 5/8” in diameter and ‘/4” high, was non-actionable as a matter of law; moreover, defendant had no notice of the defect and it was created by an independent contractor over which defendant exercised no control (16-18). Defendant submitted the affidavit of Al Rappaport, an adjustor/investigator, who claimed he inspected the site on January 13, 2010 and saw a “metal bolt/screw like object — consistent with plaintiff’s allegations — protruding from the sidewalk attending to the 1407 Sheridan Avenue property.” But the defect that caused plaintiff’s fall was in the sidewalk abutting 1413 Sheridan Avenue. Also submitted was the affidavit of Arthur Pearson, an employee and “all purpose staff member” of defendant’s law firm, who inspected and photographed the site on December 10, 2010. He located the defect after searching for it for 10- 15 minutes (239). This only shows that plaintiff could not readily have seen it. Mr. Pearson held a ruler to the defect and found it was about 5/8” in diameter and stuck up 1/8-1/4” above the surface of the sidewalk (23 9-40). He took photographs demonstrating these findings (245-58). In opposition, plaintiff pointed out that the pristine sidewalk was inconsistent with there being any defective condition, and the porters should have noticed it in the exercise of reasonable care, so that the lack of notice argument was frivolous.2 2 While this case was dismissed on trivial defect grounds, there was also a discussion of the issue of constructive notice. We note for the sake of completeness that defendant is responsible for the failure to see what its employees ought to have seen, regardless of who installed the defect. See, Kirby v. Montgomery Bros. & Co.. 197 NY 27, 31 [1909] (“Whatever source of danger the master would discover by reasonable inspection, he is presumed to know, and constructive 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 l900s (Altz v. Leiberson, 233 NY 16, 18 [19221) and the 2000s (Bennett v. New York City Tr. Auth., 3 NY3d 745-6 [2004]). in this vein, a defendant ordinarily cannot Plaintiff also pointed out that the defect was not trivial and certainly not trivial as a matter of law (273-78). ORDER AND DECISiON The trial court in a decision and order dated July 23, 2012 granted defendant’s motion and dismissed the complaint. It determined that plaintiff did not establish a prima facie case as a matter of law, that defendant did not have notice of the defective condition, and that Mr. Bellizzi’s testimony was conclusory because he did not provide measurements for the height of the defect, though it was uncontested that defendant had shaved it down by the time he inspected the site, so he could not have provided that measurement. APPELLATE DIVISION DECISION The major issue before the Appellate Division was whether the defect was actionable or trivial. The majority (3-2) held that plaintiff failed to demonstrate that the defect constituted a tripping hazard, while the dissent found that the photographs and testimony established that it was, due to a hard “edge” which clearly could cause an individual to trip and fall. According to the majority, the defect “was just 5/8 of an inch in diameter and protruded only about 3/16 of an inch above the surface”; this was a “minor height differential” which was “insufficient to establish the existence of a dangerous or defective condition.” Plaintiff had not “come forward with any evidence to show that this trivial defect could have been a ‘trap or snare’ by reason of its location, adverse weather or lighting conditions or other circumstances.” Mr. Bellizzi’s affidavit was insufficient as he “visited the site more than two years after the accident” when “the condition had been corrected.” The majority added that defendant lacked notice of the condition, based on the testimony of those who cleaned the sidewalk every morning and had never noticed it until after the accident. Again, this only emphasizes that the condition, whose existence and nature is not denied, was not readily visible to passersby, and therefore did constitute a tripping hazard. In Cronson v. Town of N. Hempstead, 245 AD2d 331 [2d Dept. 1997], plaintiff fell on a crack in a tennis court which he remembered as being 1-1 Y2” long, 1/4-1/3” wide and 1/3” deep. Defendant moved for summary judgment based on the doctrine of primary assumption of risk. The Supreme Court denied the motion, noting that plaintiffs deposition testimony alleged “the existence of a rare defect not readily apparent but yet capable of precipitating serous injury.” On appeal, the Appellate Division rejected defendant’s argument, noting that documents it submitted on the motion indicated that the area in question was “flawless”, a position that conflicted with the argument that the defect was open and obvious, such that assumption of risk might not apply. Here, similarly, if the defect was not readily apparent according to defendant’s witnesses, yet appears in photographs on the record; defendants admitted the defect existed and was sufficient to stop the movement of a shovel. Such a defect cannot be trivial or open and obvious as a matter of law. 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 387-90 [1943]). The dissent in this case would have reversed the grant of summary judgment, finding that the lack of notice argument was self-refuting given the photographs and the indications from the record that the defect became embedded when the new sidewalk was installed in 2007. That the porters did not notice the defect did not suffice to establish an absence of constructive notice. The dissent noted that the First Department in Rivera v. 2300 X-tra Wholesalers, Inc., 239 AD2d 268 [la’ Dept. 1997], had affirmed denial of summary judgment where the metal plate over which plaintiff tripped was only Y2” higher than the floor, and in Elliott v. E. 220 St. Realty Co. LLC. 1 AD3d 262 [1 St Dept. 20031, had found issues of fact where plaintiff fell due to a 1” x hole in a stair tread, since the hole might be “so sharp and abrupt that a shoe heel could become caught in it.” Here, likewise, the defect was fixed, not readily noticeable, abrupt and hard, and could be characterized as a trap or snare. That, we believe, was the proper view of this case. DISCUSSION DEFECT WAS NOT TRJ VIAL ASA MATTER OF LA W This Court has long held that there is no minimal height or specific shape requirement for a hazard on a public way, See, Loughran v. City of New York, 298 NY 320-1 [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]). The lead case, of course, is Trincere v. County of Suffolk, 90 NY2d 976 [1997], which noted that there were some defects which did not rise to the level of a defective condition so as to give rise to liability, citing Hecht v. City of New York, 60 NY2d 557, 561 [1983]. The Trincere court 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.” A mechanistic disposition based exclusively on size is unacceptable (90 NY2d at 977); 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 (978). Here, defendant’s own proof and the majority’s own reasoning establish that the defect was not trivial and certainly was not trivial as a matter of law. There is the photographic evidence, which this Court has held can suffice to establish a dangerous condition, and that same came into existence over a sufficient period of time to have been detected by defendant upon reasonable inspection, such that constructive notice can be attributed to him (Taylor v. New York City Tr. Auth.. 48 NY2d 903 [1979]; Batton v. Eighanayan, 43 NY2d 898, 900 [1978]). Again, whether a defect is trivial is normally a question of fact for the jury. Moreover, the defect here was abrupt, irregular and solidly fixed (Lupa v. City of Oswego, 985 NYS2d 361 [4’ Dept. 2014]; Jacobsen v. Krumholz, 41 AD3d 128 [l’ Dept. 2007]; Herrera v. City of New York, 262 A.D.2d 120; 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 (Nm v. Bernard. 257 AD2d 417-8 [l’ 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 717-8 [4th Dept. 19981). Here, it was not disputed that the defect was not readily visible, so it was a trap or snare which would catch the foot of a pedestrian, even if he or she was using appropriate care. See, Shechtman v. Lappin, 161 AD2d 118 [1st Dept. 1990]. Indeed, defendant’s own representatives did not see the metal object 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. In this regard, the weight of authority in the Appellate Divisions shows that where a defective condition on a public way is not readily observable, is firmly affixed to the ground, is not gradual but abrupt, and is jagged, such that it could cause a pedestrian to trip and fall, a finding of triviality as a matter of law constitutes reversible error, See, Ortiz v. 82-90 Broadway, 2014 NY APP DIV LEXIS 3753 [2d Dept. 2014]; Deviva v. Bourbon St. Fine Foods & Snirit, 116 AD3d 654 [2d Dept. 20141; Negin v. KEM Entezs. Inc. (Index No. 20604/10), 111 AD3d 901 [2d Dept. 2013]. The lAS judge in this case was reversed by the Appellate Division in Munasca v. Morrison Mgt. LLC, 111 AD3d 564 [1st Dept. 2013], citing Abreau v. New York City Hous. Auth., 61 AD3d 420 [1 Dept. 2009], where defendant’s motion papers did not “unequivocally demonstrate that the complained-of defect” was “trivial as a matter of law” since its “size” was “not discernible, and the photos in the record appear to show that the defect has an edge, which could constitute a tripping hazard.” Pursuant to Abreau, where the defect is capable of catching a pedestrian’s shoe, triviality cannot be established as a matter of law. The same is true where an irregular defect is found in a highly trafficked location (Brenner v. Herricks Union Free Sch, 106 A.D3d 766 [2d Dept. 2013]). The First Department itself has found that defects less than W’ high may be actionable (Rivera v. 2300 X-tra Wholesalers. Inc., supra). A 3/16” deep defect can be actionable (Nm v. iriupi:a). Plaintiff can recover even where his foot strikes a defect that is descending rather than ascending (Young v. City of New York, 250 AD2d 383 [1st Dept. 19981). Decisions on this question in other cases are of “little precedential value” since the determination is so fact- specific (Evans v. Pyramid Co. of Ithaca, 184 AD2d 960-1 [3d Dept. 1992]; see generally, Smith v. City of New York, 38 AD2d 965 [2d Dept. 1972]). It seems to us that plaintiff’s testimony in this case that he was looking straight ahead and tripped on a fixed metal object that was completely different from its surroundings raises a triable issue as to liability (Narvaez v 2914 Third Ave. Bronx, LLC, 88 A.D.3d 500 [1st Dept. 2011]; George v. New York City Tr. Auth., 306 AD2d 160 [151 Dept. 2003]; Tese-Milner v. 30 E. 85 St. Co., 60 AD3d 458 [1 Dept. 2010]). Metal protrusions in walking areas cannot be considered trivial defects where they can cause a person’s foot to become trapped resulting in a fall (Martyniak v. Charleston Enters. LLC, 2014 NY App. Div. LEXIS 3929 [2d Dept. 2014]). The exception would be where the object does not have the capacity to trap or snare the foot (Meehan v. David J. Hodder & Son, Inc., 13 AD3d 593 [2d Dept. 2004]). And where it comes to height differentials and gaps, we note that a 1/8” gap between a nosing and a step was held actionable in Seivert v. Kingpin Enter. Inc., 55 AD3d 1406 [4th Dept. 2008]. To sum up, the defect in this case is not trivial as a matter of law because: 1. Defendant’s own representatives did not see it though they cleaned the area constantly; 2. The rest of the sidewalk was in pristine condition, so that the appearance of metal in it was surprising; 3. The defect was abrupt; 4. The metal was irregular; 5. Plaintiff had no reason to expect any hazard in the area; 6. The metal is completely embedded in the concrete and has a jagged surface as shown in photographs; 7. Plaintiff was not required to look down at his feet at all times on a sidewalk which is in good condition generally so as to see and avoid the condition. We propose that the Court adopt the following rule of law 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. DEFENDANT HAD CONSTRUCTIVE NOTICE OF THE DEFECT. The owner or possessor of property has notice of a defect where it is easily detected 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. See, Gordon v. American Museum of Natural History, 67 NY2d 836 [1986]; Negri v. Ston & Shop, Inc., 65 NY2d 625 [1985]; Lewis v. Metro. Transp. Auth., 64 NY2d 670 [1984], affg. on op. below, 99 AD2d 246, 249 [1st Dept. 1984], Constructive notice is broader than actual notice (Sanchez v. State, 99 NY2d 247 [2002]. Again, failure to see what should be seen is inculpatory, not exculpatory (Weigand v. United Traction Co., 221 NY 39 [1917]). Defendant has constructive notice of facts he should discover upon a reasonable inspection and which arise over a considerable time, and he is held to know what he would have discovered by inspection (Ktrbv v Montgomery Bros. & Co., supra); he is presumed to know what he would thereby have discovered (Adlam v. Konvalinka, supra). Knowledge may be established through circumstantial evidence in the face of “professions of ignorance (Kumkumian v. City of New York, 305 NY 167 [1953], quoting Wolosczynowski v. New York Central Bank, 254 NY 206 [1930]). Here, the condition shown in the photographs is plainly visible and defendant’s employees claimed not to have noticed it for years though they were actively maintaining the area as part of their job. In such a situation, a claim of lack of notice fails as a matter of law, since a party that is present at a site cannot claim lack of notice with respect to a condition present in the area that could have been detected upon reasonable inspection under the prevailing weight of authority in New York. See, Walters v Costco Wholesale Corp., 51 AD3d 785 [2d Dept. 2008]; as Park v Caesar Chemists. Inc., 245 AD2d 425 [2d Dept. 1997]. In addition, there is no evidence on this record as to when the area was last inspected. Accordingly, under the governing decisional law, defendant has not made a prima facie showing of entitlement to summary judgment. See, Lamour v. Decimus, 2014 NY App. Dist. LEXIS 4392 [2d Dept. 2014]; Fama v. City of New York, 2014 NY App. Dist. LEXIS 4022 [1sf Dept. 2014]; Gilberti v. Town of Spafford, 2014 NY AD LEXIS 3315 [4th Dept. 2014]; Rosati v. Kohl’s Dep’t. Stores Inc., I AD3d 674 [3d Dept. 2003]; Reynolds v. Knibbs, 15 NY3d 879 [2010]; Teodorescu v. Resnick & Binder, P.C. 14 NY3d 776 [2010]. Based upon the foregoing, it is respectfully submitted that the Appellate Division’s order should be reversed, and that plaintiff’s complaint should be reinstated in full in accordance with the decision of the dissenting justices at the Appellate Division, and that this Court should issue any other, further or different relief it deems just, proper and equitable. Very truly yours, - Brian J. Isaac BJI/bsd Cc: Kevin J. O’Dormell, Esq. Kaufman Dolowich & Voluck, LLP Attorneys for Defendant-Respondent 21 Main Street, Suite 251 Flackensack, NJ 07601 201-488-6655 Getz v. Braverman, PC 172 East 16 1st Street Bronx, NY 10451