Leonard Hutchinson, Appellant,v.Sheridan Hill House Corp., Respondent.BriefN.Y.September 17, 2015KAUFMAN /\ rTORNr YS AT I AW Kevin .1. O'Donnell Direct Dial: 201-708-8234 Email: kodonnell(mkdvlaw.com IN-HAND Court of Appeals State ofNew York 20 Eagle Street VOLUCK July 15, 2014 Albany, New York 12207-1095 Attn: Andrew W. Klein, Chief Clerk & Legal Counsel to the Court Dear Mr. Klein: Re. Hutchinson v. Sheridan Hill House Corp. Index No.: 207060/2009 (Bronx Cty.) APL-2014-00045 Kaufman Dolowich & Voluck, LLP Court Plaza South 21 Main Street. Suite 2S! Hackensack. New 07601-7086 201488.66",~, Fac ;,irniie 701488 66')) w•Nw.kdvlaw.corn This firm represents defendant-respondent Sheridan Hill House Corp. ("Sheridan" or "defendant") in this matter. We submit this letter memorandum pursuant to the Court's June 13, 2014 Scheduling Order and 22 NYCRR §500.11. Plaintiff appeals from the October 22, 2013 Decision and Order of the Supreme Court, Appellate Division, First Department affirming summary judgment in favor of defendant. Plaintiff, Leonard Hutchinson, claims he tripped, fell and was injured due to a round metal object measuring just 5/8 of an inch in diameter and projecting 3/16 of an inch (or just high enough to come up to the bottom of the black metal strip on an MTA Metrocard) above the surface of the sidewalk in front of defendant's premises in Bronx, New York. 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 notice, but also held that the defect was trivial and non-actionable as a matter of law. While defendant agrees with plaintiff that these issues are "recurring and important," defendant respectfully submits that the motion court and the majority of the Appellate Division got it right, and that those decisions should be summarily affirmed. The recitation of operative facts contained in plaintiffs June 25, 2014 letter to this Court is generally accurate with one notable exception: plaintiff on page 4 describes his expert evidence submitted to the motion court as being contained in "Mr. Bellizzi's affidavit". Importantly, however, plaintiff did not submit an expert affidavit from Mr.Bellizzi in opposition to defendant's motion, but instead relied upon his unsworn report, a point expressly noted by the motion in holding that plaintiff failed to rebut defendant's prima facie showing of entitlement to summary judgment. The motion court further held that Mr. Bellizi's opinions were unreliable because based upon an inspection performed over two years after the accident and after the object had already been removed. With these exceptions, for purposes of this letter, defendant New York Pennsylvania New Jersey 1 San Francisco Los Angeles Flonda otherwise adopts the facts set forth in plaintiffs July 251h letter with limited supplementation where indicated. DEFENDANT LACKED ACTUAL OR CONSTRUCTIVE NOTICE OF ANY DEFECT 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 due to the object's small size "plaintiff could not reasonably have seen it." Yet, in the next breath, he argues that defendant's "porters should have noticed it in the exercise of reasonable care." Why defendant's porters should have noticed the object but plaintiff who had previously walked on the subject sidewalk hundreds of times should not is not explained. Finally, plaintiff argues that "if the 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." Plaintiff cites the seminal case of Gordon v. American Museum of Natural History, 67 N. Y.2d 636 (1987) for the proposition that the owner or possessor of property has notice of a defect where it is easily detected upon reasonable inspection, and exists long enough prior to the accident to permit it to be discovered and remedied in the exercise of reasonable care. In order to impute defendant with constructive notice, Gordon requires that plaintiff 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 neither plaintiff nor any of defendant's employees had seen the object prior to the alleged accident, and plaintiffs own arguments conclusively demonstrate that the object was not visible, apparent nor readily detected, since he concedes that due to its 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 plaintiffs accident," aside from rank speculation on the part of plaintiff and his engineering expert, Nicholas Bellizi, P.E., whose opinions the motion court properly held were inadmissible because not contained in a sworn affidavit and unreliable because based upon an inspection performed after the object had been removed, 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. Burko v. Friedland, 62 A.D.3d 462 (1st Dept. 2009) is a sidewalk defect case involving similar facts as the present. There, the Appellate Division 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 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." Arnold v. N.Y. City Hous. Auth., 296 A.D.2d 355, 355-356 (1st Dept. 2002) also involved similar facts, which formed the predicate for the Appellate Division's determination that defendant lacked constructive notice of the alleged defect. In that case, 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 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). Arnold and Burko are directly on point. Defendant submitted substantial unrefuted evidence establishing that none of its employees had ever seen the defect or received complaints about it prior to plaintiffs accident. Accordingly, the burden shifted to plaintiff to come forward with admissible evidence establishing that the defect was visible and apparent and had existed for a sufficient length of time for defendant to reasonably discover it. This he failed to do. Finally, while 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 plaintiffs accident, this is simply not true. Mr. Whyte, the porter employed by defendant at the time of the accident, 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. [RA 214]. Since plaintiffs 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 noted to be present at that time. "[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). In short, the motion court and the Appellate Division were both correct in holding that defendant lacked actual or constructive notice of the alleged defect. THE DEFECT WAS TRIVIAL AND NON-ACTIONABLE AS A MATTER OF LAW Defendant submitted ample evidence in the form of plaintiffs deposition testimony and photographs of the defect, which conclusively demonstrate that the object over which plaintiff allegedly tripped measured just 5/8 of an inch in diameter and about 3116 of an inch in height. Likewise, plaintiffs deposition testimony concerning the circumstances of the accident and the conditions prevailing at the time of its occurrence further demonstrate that the object did not constitute a "trap" or a "snare". Accordingly, defendant respectfully submits that the Appellate Division properly held that the object 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 AD3d 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." Id. 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 tripped over during the daylight hours, was trivial as a matter of law); see also, Gaud v. Markham, 307 A.D.2d 845 (1st Dep't 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). 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 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. In the present case, the evidence overwhelmingly demonstrates both that the alleged defect was trivial and non-actionable as a matter of law and that did not constitute a trap or snare. As the photographs of the object clearly show, it was less than 14 inch in height and approximately 5/8 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 fall. Furthermore, it was bright and sunny at the time of the accident; nothing was obstructing plaintiff's view, and he was not distracted. 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 Burko, supra, 62 A.D.3d 462 (1st Dept. 2009), plaintiff tripped over a sidewalk defect that measured 5/8 of an inch deep, four inches long and two inches wide. The Court held that "[t]he defect, 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." Similarly, in Schwartz v. Bleu Evolution Bar & Rest. Corp., 2011 NY Slip Op 8980, 1 (1st Dept. 2011 ), the Appellate Division reversed the lower court's denial of summary judgment finding that plaintiff failed to raise a triable issue of fact that the defective condition, a Yz inch wide by Yz inch high gap between two sidewalk ±1ags, was not actionable. Likewise, in Riley v. City of New York, 2008 NY Slip Op 3090, 1 (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 Court 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 oflaw." Id. As demonstrated by Riley, supra, plaintiff's argument that "[mJetal protrusions in a walking area cannot be considered trivial defects where they can cause a person's foot to become trapped resulting in a fall" is also contrary to a long line of Trincere progeny. For instance, in Schenpanski v Promise Deli, Inc., 2011 NY Slip Op 7625, 1 (2d Dept. 2011) the Appellate Division affirmed summary judgment in favor of 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. Likewise, in Milewski v Washington Mut., Inc., 2011 NY Slip Op 7400, 1 (2d Dept. 2011), the alleged defect consisted, according to the plaintiffs, of a height 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 plaintiffs 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. *2 (emphasis added). Finally, the dissent cites Argenio v. MTA, 277 A.D2d 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 Court noted that the prevailing facts and circumstances "render[ ed] observation of the defect less likely." I d. 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 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 A venue. In any event, plaintiff expressly admitted that he was not distracted as he approached the accident site, and nothing was obstructing his view. In sum, for the foregoing reasons defendant respectfully submits that summary judgment was appropriate and the Appellate Division's Decision and Order should be in all respects affirmed. Very truly yours, KAUFMAN, DOLOWICH & VOLUCK LLP c.c.: Brian Isaac, Esq. POLLACK, POLLACK, ISAAC & DECICCO, LLP 225 Broadway New York, New York 10007 l