Maureen Adler, Appellant,v.QPI-VIII, LLC, et al., Respondents.BriefN.Y.September 17, 2015APL-2015-00087 Queens County Clerk’s Index No. 4952/11 Appellate Division, Second Department Docket No. 2014-03181 Court of Appeals STATE OF NEW YORK MAUREEN ADLER, Plaintiff-Appellant, against QPI-VIII LLC and VANTAGE MANAGEMENT SERVICES, LLC, Defendants-Respondents. >> >> BRIEF FOR PLAINTIFF-APPELLANT LAW OFFICES OF VEL BELUSHIN, P.C. Attorneys for Plaintiff-Appellant 1712 Kings Highway, Suite 2A Brooklyn, New York 11229 718-787-4470 Date Completed: June 29, 2015 To Be Argued By: Georgette Hamboussi Time Requested: 30 Minutes i TABLE OF CONTENTS TABLE OF CONTENTS ……………………………………………………..i TABLES OF AUTHORITIES ……………………………………………… .ii PRELIMINARY STATEMENT………………………………………………1 QUESTIONS PRESENTED…………………………………………………..3 STATEMENT OF FACTS…………………………………………………….3 ARGUMENT ………………………………………………………………….8 POINT 1 SECOND DEPARTMENT IMPROPERLY USURPED THE JURY PROVINCE WHEN IT DETERMINED BASED ON ITS REVIEW OF PHOTOGRAPHS ALONE THAT DEFECT WAS TRIVIAL AS A MATTER OF LAW ………………………………………………………………………………….8 POINT 2 SECOND DEPARTMENT ERRED WHEN IT FAILED, AFTER FINDING BASED ON A BARE CONCLUSOTY ASSERTION THAT THE DEFECT WAS TRIVIAL, TO CONSIDER WHETHER RESPONDENTS MET THEIR BURDEN TO SHOW THAT THEY NEITHER CREATED THE DEFECTIVE CONDITON NOR HAD ACTUAL OR CONSTRUCTIVE NOTICE OF ITS EXISTENCE.………… 19 CONCLUSION………………………………………………………………..23 ii TABLE OF AUTHORITIES Cases Abreu v. New York City Housing Authority, 61 A.D.3d 420, 876 N.Y.S.2d 50 (1st Dep't 2009)……………………………………………….16 Adamopoulos v. Liotti, 273 A.D.2d 260, 708 N.Y.S.2d 706 (2d Dep't 2000)…..11 Argenio v Metropolitan Transp. Auth., 277 A.D.2d 165, 716 N.Y.S.2d 657 (1st Dep’t 2000)……………………………………………...11 Birnbaum v. New York Racing Ass’n., Inc., 2008 N.Y. Slip. Op 09741 (2d Dep’t Dec. 9, 2008)…………………………………………………………..20 Burke v. Crosson, 85 NY2d 10 (1995)……………………………………………2 Dominguez v. OCG, IV, LLC, 82 A.D.3d 434, 918 N.Y.S.2d 406 (1st Dep't 2011)……………………………………………12, 13 Elliott v. East 220th St. Realty Co., 1 A.D.3d 262, 767 N.Y.S.2d 426 (1st Dep't 2003)……………………………………………11, 15 Felix-Cortes v. City of New York, 54 A.D.3d 358, 863 N.Y.S.2d 72 (2d Dep't 2008)…………………………………………………15 Gonzalez v. Club Monaco U.S., LLC, 95 A.D.3d 549, 943 N.Y.S.2d 109 (1st Dep't 2012)……………………………………………….14 iii Gotay v. New York City Hous. Auth., 127 A.D.3d 693, 7 N.Y.S.3d 311 (2d Dep't 2015)…………………………………………………..13 Glover v. City of New York, 298 A.D.2d 428, 748 N.Y.S.2d 393 (2d Dep’t 2002)…………………………………………………………………..10 Jangana v. Nicole Equities LLC,127 A.D.3d 458, 8 N.Y.S.3d 46 (1st Dep't 2015)……………………………………………………12 Joachim v. 1824 Church Ave., Inc., 12 A.D.3d 409, 784 N.Y.S.2d 157 (2d Dep't 2004)………………………………………………..21 Johnson v. Culinary Institute of America, 95 A.D.3d 1077, 944 N.Y.S.2d 307 (2d Dep’t 2012)……………………………………………….20 Kosson v. Algaze, 84 N.Y.2d 1019, 622 N.Y.S.2d 674 (1995)……………………8 Lehman v. North Greenwich Landscaping, LLC, 16 N.Y.3d 747, 917 N.Y.S.2d 621 (2011)…………………………………………………………20 Matter of Cuttitto Family Trust, 10 A.D.3d 656, 781 N.Y.S.2d 696 (2d Dep’t 2004)…………………………………………………9 Nin v. Bernard, 257 A.D.2d 417, 683 N.Y.S.2d 237 (1st Dep't 1999)……………16 O'Neill v. Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 (2d Dep’t 1987)…………9 Ortiz v. 82-90 Broadway Realty Corp., 117 A.D.3d 1016, 986 N.Y.S.2d 133, 135 (2d Dep't 2014)…………………………………………13 iv Porco v. Marshals Dep’t Stores, 30 A.D.3d 284, 817 N.Y.S.2d 268 (1st Dep’t 2006)………………………………………………21 Rivas v. Crotona Estates Housing Development Fund Company, Inc., 74 A.D.3d 541, 902 N.Y.S.2d 536 (1st Dep't 2010)…………………………..5, 16 Roth v. Barreto, 289 A.D.2d 557,735 N.Y.S.2d 197 (2d Dep’t 2001)…………....9 Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957)…………….9 Sledge v. Apple Maintenance & Services, Inc., 2009 NY Slip Op 50774(U) (Sup. Ct. Kings County April 23, 2009)………………………………………….21 Speller ex rel. Miller v. Sears, Roebuck and Co., 100 N.Y.2d 38, 760 N.Y.S.2d 79 (2003)………………………………………………………….10 Rivera v. 2300 X-Tra Wholesales, Inc., 239 A.D.2d 268, 658 N.Y.S.2d 264 (1st Dep't 1997)……………………………………………….10 S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478 (1974)………………………………………………………….9 Stachowski v. City of Yonkers, 742 N.Y.S.2d 568, 294 A.D.2d 489 ( 2d Dep't 2002)…………………………………………………14 Surdo v. Albany Collision Supply, Inc., 8 A.D.3d 655, 779 N.Y.S.2d 544 (2d Dep’t 2004)……………………………………………………………………9 Tineo v. Parkchester South Condominium, 304 A.D.2d 383, 759 N.Y.S.2d 9 (1st Dep't 2003)………………………………………….10, 11, 14 v Trincere v. County of Suffolk, 90 N.Y.2d 976 (1997)………………………..10, 12 Turuseta v. Wyassup-Laurel Glen Corp., 91 A.D.3d 632, 937 N.Y.S.2d 240 (2d Dep't 2012)………………………………………………..14 Van Steenburg v. Great Atl. & Pac. Tea Co., 235 A.D.2d 1001, 652 N.Y.S.2d 893 (3d Dep’t 1997)………………………………………………21 Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 (2012)………..9 Weller v. Colleges of the Senecas, 217 A.D.2d 280, 635 N.Y.S.2d 990 (4th Dep’t 1995)……………………………………………..20 Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985)……………….22 Young v. City of New York, 250 A.D.2d 383 (1st Dep’t 1998)…………………5 1 PRELIMINARY STATEMENT Plaintiff-Appellant (“Appellant”) Maureen Adler sued Defendants- Respondents (“Respondents”) QPI-VIII LLC and Vantage Management Services, LLC to recover damages for her personal injuries suffered as a result of a slip and fall accident that occurred on a stair in the property owned and managed by Respondents. Appellant now appeals a decision and order of the Appellate Division, Second Department, dated January 14, 2015 (the “Order”)(287). The order reversed an order of Supreme Court (4) and granted Respondents' motion for summary judgment dismissing the complaint. On this Appeal, Appellant asks the Court to reverse the Order and to reinstate the complaint ruling that the Second Department erred when it (1) determined based on its review of photographs alone that the defect on the stair was trivial as a matter of law, and (2) failed to consider the issue of whether Respondents met the initial burden of making a prima facie showing that they neither created the hazardous condition nor had actual or constructive notice of its existence. As demonstrated below, the trivial nature of the defective condition could not be established by the court based on Respondents’ submission of 2 photographs alone since doing so would deprive Appellant from her chance to submit this ultimate question of fact to the jury. Moreover, Respondents had an initial burden to make a prima facie showing that they neither created the hazardous condition nor had actual or constructive notice of its existence. The fact that Respondents relying on a bare conclusory assertion argued that the defect was trivial does not relieve them from meeting the initial burden before the court considers the opposing papers. By completely skipping this inquiry, the Second Department essentially relieved Respondents from their obligation to come up with evidence establishing that they exercised their duty to keep the premises free from dangerous condition. Thus, Respondents were not entitled to motion for summary judgment since they failed to satisfy their initial burden. Finality and Jurisdiction: The Second Department’s Order by granting motion for summary judgment dismissed all claims against Respondents and therefore was a final order, the one that disposes of all the causes of action between the parties and leaves nothing for further judicial intervention apart from mere ministerial matters. See Burke v. Crosson, 85 NY2d 10, 15 (1995). On Appellant's motion, this Court granted leave to appeal by order dated April 7, 2015 (285). Preservation of Issues: The issues presented on this appeal were preserved below 3 in Appellant’s brief to the Second Department. QUESTIONS PRESENTED 1. Did the Second Department improperly usurp the jury’s province when it determined based on its review of photographs alone that the defect on the stair was trivial as a matter of law? Proposed determination: Affirmative. 2. Did the Second Department err when, after finding based on a bare conclusory assertion that the defect was trivial, it failed to consider the issue of whether Respondents met the initial burden of making a prima facie showing that they neither created the hazardous condition nor had actual or constructive notice of its existence? Proposed determination: Affirmative. STATEMENT OF FACTS Appellant Maureen Adler was injured as a result of a trip and fall accident that occurred on March 30, 2010, when she tripped and fell while walking down on the interior staircase, (Rec. 89, 101), in the building located at 34-15 Parsons Boulevard, Queens, NY, which was owned by Respondent QPI-VII, LLC, and was managed by Respondent Vantage Management Services, LLC. (Rec. 44, 202). As a result of the accident, Appellant broke her knee platform. (Rec. 101). 4 Appellant testified at her deposition that the ball of her right foot “got caught on something that’s in the middle of the stair that’s been painted over.” (Rec. 101). She also broke her tooth. (Rec. 121). Next morning, she was transported by the ambulance to an emergency room in a hospital. (Rec. 119). A few days later, a doctor reviewing her x-rays diagnosed her with a fractured knee platform. (Rec. 124-25). A several days later, a surgery was performed to reset the fractured bone. (Rec. 128-31). To recover from the surgery, Appellant went through the extensive rehabilitation through physical therapy. (Rec. 134-35). Appellant was out of work for a period of five months and she lost at least $20,000 in wages. (R. 138, 147). She has not been able to treat her broken tooth since she could not afford the dental services. (Rec. 140-41). Appellant still experiences pain in her knee and her range of motion is limited. (Rec. 142). She could not clean her apartment, cook, or do grocery shopping by herself, so she has to rely on her sons for assistance. (Rec. 145-46). Edward Madej, the building’s superintendent testified at his deposition that the stairs were painted sometime before the accident. (Rec. 212- 15). The superintendent could not confirm that he was responsible for safety inspections of the building and he had no knowledge of any records of safety inspections kept by the management. (Rec. 220-21). 5 Appellant identified what caused her to trip as a defective, raised and unevenly cemented/cracked surface on the stairway located at the Respondents' premises. This action was commenced on February 28, 2011, by the filing of a Summons and Complaint. (Rec. 35-43). The issue was joined by Respondents by service a Verified Answer on September 20, 2011. (Rec. 44-48). Appellant served a Verified Bill of Particulars dated February 7, 2012. (Rec. 50-55). Appellant served Amended Bills of Particulars dated February 14, 2012 and August 8, 2012. (Rec. 56-62). A Preliminary Conference Order was issued on February 9, 2012, indicating that motions for summary judgment shall be made no later than 120 days after the filing of the Note of Issue. (Rec. 63-65). Appellant filed a Note of Issue on Apri119, 2013. (Rec. 67-70). Respondents timely filed their motion for summary judgment on August 15, 2013, seeking dismissal of Appellant’s complaint and arguing that the defective condition was “de minimus” as a matter of law, and that Appellant failed to establish that Respondents created or had notice of the defective condition. (Rec. 11-34). Respondents attached to their motion as an exhibit three photographs that purportedly were to demonstrate that the defective condition was “de minimus.” (Rec. 189-91). Respondents in support of their motion for summary judgment did not offer anything other than the 6 photographs and deposition transcripts of Appellant and the building’s superintendent. Appellant timely filed her opposition on September 25, 2013, arguing that Respondents failed to make out a prima facie case, that there are genuine issues of material fact which must be decided at trial, that the defective condition was not de minimus or trivial, and that Respondents failed to meet their burden of showing that they neither created nor had actual or constructive notice of its existence. (Rec. 246-274). Respondents in their reply brief filed on December 2, 2013 continued arguing that defective condition was “de minimus” as a matter of law. (Rec. 277-282). In an order and decision dated February 4, 2014, the Hon. Denis J. Butler, J.S.C., denied Respondents’ motion as follows: Upon review of all of the deposition testimony, including defendants’ photographs marked during deposition as exhibits A, C and D for identification, the court finds that defendants failed to establish, as a matter of law, that they did not create the alleged condition or have actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. Additionally, the bare statement by defendants’ attorney that the alleged unsafe condition is de minimus is unsupported by any evidence in the record currently before the court. Therefore, defendants have failed to meet their burden in 7 establishing a prima facie case. (Rec. 6-8). Respondents timely filed their appeal to Appellate Division, Second Department on May 15, 2014 seeking reversal of the lower court decision arguing, inter alia, that the defect on the stairs was trivial and had none of the characteristics of a trap or snare. Appellant opposed the appeal by her brief filed on July 9, 2014, arguing that the lower court’s decision should be affirmed because Respondents failed to establish that the defect was trivial, and that Respondents have failed to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact showing that they neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover it. The Reply brief was filed on August 13, 2014. On January 14, 2015, the Second Department rendered its Decision and Order, reversing the lower court’s order and granting the Respondents' motion for summary judgment dismissing the complaint. The order states, in relevant part, that the defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, the 8 plaintiffs deposition testimony, as well as the photographs of the subject step, which the plaintiff admitted fairly and accurately depicted the step and the "clump" that allegedly caused her to trip and fall. The evidence, and in particular the photographs, established that the alleged defect was trivial as a matter of law and did not possess the characteristics of a trap or nuisance, and, therefore, was not actionable. . . . In view of the foregoing, we do not reach the parties' remaining contentions. Appellant timely filed leave to appeal this order to this Court, which was granted on April 7, 2015. ARGUMENT POINT 1 SECOND DEPARTMENT IMPROPERLY USURPED THE JURY PROVINCE WHEN IT DETERMINED BASED ON ITS REVIEW OF PHOTOGRAPHS ALONE THAT DEFECT WAS TRIVIAL AS A MATTER OF LAW The Second Department impermissibly erred when it held that Respondents established their prima facie entitlement to judgment as a matter of law as to whether the alleged defect on the stair was trivial in nature based on its review of single piece of evidence, to wit, photographs. It is settled law that to prevail on a motion for summary judgment, the moving party must produce evidentiary proof in admissible form sufficient to show the absence of any material issue of fact and the right to judgment as a matter of 9 law. See Kosson v. Algaze, 84 N.Y.2d 1019, 1020, 622 N.Y.S.2d 674 (1995). The long established case law reiterated recently by the Court of Appeals states that “[i]t is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof).” Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 505, 942 N.Y.S.2d 13 (2012)(emphasis added). “[I]n order to obtain summary judgment there must be no triable issue of fact presented and . . . even the color of a triable issue of fact forecloses the remedy.” In the Matter of Cuttitto Family Trust, 10 A.D.3d 656, 657, 781 N.Y.S.2d 696 (2d Dep’t 2004). Since summary judgment is the procedural equivalent of a trial, “any doubt as to the existence of a triable issue, or where the material issue of fact is “arguable,” the motion should be denied.” Id. This drastic remedy should not be granted where there is any doubt as to the existence of such issues, or where the issue is "arguable"; "issue-finding, rather than issue- determination, is the key to the procedure." Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957)(citation omitted) . In determining the motion for summary judgment, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true. See Roth v. Barreto, 289 A.D.2d 557, 558, 735 N.Y.S.2d 197 (2d Dep’t 2001); 10 O'Neill v. Fishkill, 134 A.D.2d 487, 489, 521 N.Y.S.2d 272 (2d Dep’t 1987). The court should refrain from making credibility determinations, see, S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478 (1974); Surdo v. Albany Collision Supply, Inc., 8 A.D.3d 655, 779 N.Y.S.2d 544 (2d Dep’t 2004), and the papers should be scrutinized carefully in the light most favorable to the party opposing the motion. See Glover v. City of New York, 298 A.D.2d 428, 429, 748 N.Y.S.2d 393 (2d Dep’t 2002). Moreover, "[w]here causation is disputed, summary judgment is not appropriate unless `only one conclusion may be drawn from the established facts." Speller ex rel. Miller v. Sears, Roebuck and Co., 100 N.Y.2d 38, 44, 760 N.Y.S.2d 79 (2003). Specifically, the question of “whether a dangerous or defective condition exists on the property of another so as to create liability `depends on the peculiar facts and circumstances of each case' and is generally a question of fact for the jury.” Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615 (1997). More specifically, whether a defect in a sidewalk or step is trivial is generally a matter for a jury, and “a mechanistic disposition of a case based exclusively on the dimension of the . . . defect is unacceptable.” Trincere , 90 N.Y.2d at 977-978. It is important to note that, there is no “’minimal dimension test’ or 11 per se rule that a defect must be of a certain minimum height or depth in order to be actionable.” Tineo v. Parkchester South Condominium, 304 A.D.2d 383, 759 N.Y.S.2d 9 (1st Dep't 2003)( citing Trincere, 90 N.Y.2d at 977-978)). For example, in Rivera v. 2300 X-Tra Wholesales, Inc., where a metal plate over which plaintiff allegedly tripped was no more than one half inch higher than the floor, the court stated that "[t]here is no rule that a hole in a public thoroughfare must under all circumstances be of a particular depth before its existence can give rise to a legal liability." 239 A.D.2d 268, 658 N.Y.S.2d 264 (1st Dep't 1997). The court held that “[u]pon the present record, we cannot say as a matter of law that this projection had "none of the characteristics of a trap or a snare." Id. See also Tineo, 304 A.D.2d at 383 (3/4 inch deep depression of the tripping hazard was sufficient to raise an issue of fact precluding the grant of summary judgment); Elliott v. East 220th St. Realty Co., 1 A.D.3d 262, 767 N.Y.S.2d 426 (1st Dep't 2003) (court denied summary judgment where the defect was one-half inch in depth at its deepest point.); Argenio v Metropolitan Transp. Auth., 277 A.D.2d 165, 716 N.Y.S.2d 657 (1st Dep’t 2000)(“While a gradual, shallow depression is generally regarded as trivial, the presence of an edge which poses a tripping hazard renders the defect nontrivial.”); Adamopoulos v. Liotti, 273 A.D.2d 260, 261, 708 N.Y.S.2d 706 (2d Dep't 2000)(“it cannot be concluded as a 12 matter of law that the defect in the staircase was of such a trivial nature that it could not have given rise to a legal liability on the part of the LIRR”). To properly determined if there are issues of fact presented with respect to the finding of whether the defect is trivial in nature, the court should conduct examination of the facts presented, including “the width, depth, elevation, irregularity and appearance of the defect along with the ‘time, place and circumstance" of the injury.’” Trincere , 90 N.Y.2d at 978. There is well established case law setting forth the standards for deciding whether the condition is trivial. Following the Trincere guidelines, the courts have looked into different evidence and have considered multiple factors as opposed to just relying on the single evidence, such as photographs depicting the defect at issue. For example, in Jangana v. Nicole Equities LLC,127 A.D.3d 458, 8 N.Y.S.3d 46 (1st Dep't 2015), the court affirmed denial of summary judgment where plaintiff alleges that he was injured when, while making a delivery to a tenant in defendants' building, he tripped over mislaid or raised carpeting on the staircase of the building. The court rejected defendants’ contention that the defect in the carpet was trivial despite that fact that defendants offered expert testimony, since whether a defective condition exists so as to create liability depends on "the 13 peculiar facts and circumstances of each case and is generally a question of fact for the jury.” Id. Similarly, in Dominguez v. OCG IV, LLC, as in our case, defendant relied on photographs of the step to establish that the defect was trivial. But the court noted that “the photographs show an irregular, patched and worn surface, which is not inconsistent with plaintiff's testimony that he fell when his foot became caught in a crack on the edge of the step.” 82 A.D.3d 434, 918 N.Y.S.2d 406 (1st Dep’t 2011). The court noted that defendant in Dominguez did not provide testimony of any person with knowledge of the condition of the entranceway at the time of the accident implying that the mere examination of the photographs offered as evidence is not enough to establish the condition at the time of the accident. Id. at 434. Therefore, Dominguez court concluded that “Appellant failed to demonstrate its entitlement to summary judgment since it did not establish that the defect in the subject step was trivial as a matter of law.” Id. In Gotay v. New York City Hous. Auth., 127 A.D.3d 693, 7 N.Y.S.3d 311 (2d Dep't 2015), the court reversed order granting defendants’ motion for summary judgment holding that the evidence submitted by the defendant in support of its motion, including the transcripts of the deposition testimony of the parties and photographs of the sidewalk, was insufficient to demonstrate that the 14 alleged defect was trivial as a matter of law and, therefore, not actionable. In Ortiz v. 82-90 Broadway Realty Corp., 117 A.D.3d 1016, 1016, 986 N.Y.S.2d 133, 135 (2d Dep't 2014), the court reversed order granting defendants’ motion for summary judgment holding evidence submitted by the defendant, including the transcripts of the deposition testimony of the parties and photographs of the sidewalk, was insufficient to demonstrate, prima facie, that the alleged defect was trivial, and did not constitute a trap or nuisance, and was, therefore, not actionable. In Gonzalez v. Club Monaco U.S., LLC, 95 A.D.3d 549, 549, 943 N.Y.S.2d 109, 110 (1st Dep't 2012), the court affirmed denial of motions for summary judgment stating that “[a]lthough it is possible that the defect has no appreciable depth, that cannot be conclusively determined from the photographs, and there is no other evidence of record in that regard.” (emphasis added). See also Turuseta v. Wyassup-Laurel Glen Corp., 91 A.D.3d 632, 634, 937 N.Y.S.2d 240, 243 (2d Dep't 2012)(“Upon our scrutiny of the photographs authenticated by the plaintiff and the defendants' fact witness and the description of the plaintiff's fall, and upon our consideration of the appearance of the alleged defect and the time, place, and circumstances of the accident, we conclude that the evidence does not support the conclusion urged by the defendants that the defect was trivial and, 15 thus, not actionable”) ; Stachowski v. City of Yonkers, 742 N.Y.S.2d 568, 569, 294 A.D.2d 489 ( 2d Dep't 2002)(“The photographs and other evidence in the record demonstrate that the issue of whether the sidewalk defect in question was "trivial" and hence nonactionable, was for the jury”). In Tineo v. Parkchester S. Condo., the court reversing the grant of motion for summary judgment held that “[w]hile defendants emphasize that plaintiff was unable to state with certainty what had caught her shoe and thus what caused her to fall, that, coupled with other relevant circumstances, to wit, inter alia, the length, width, and depth [3/4 inch deep depression] of the tripping hazard, was sufficient to raise an issue of fact precluding the grant of summary judgment.” 304 A.D.2d at 383-384. In Elliott v. East 220th St. Realty Co., the plaintiff alleged that she was caused to trip and fall when her heel got caught in a hole at the edge of a staircase tread, and the defendant claimed the defect was nonactionable because the hole was only one inch in width at its widest point, and one-half inch in depth at its deepest point. 1 A.D.3d 262. The court denied summary judgment and explained that “even assuming the defendant's measurements of the defect were correct, there were issues of facts regarding whether the defect was ‘so sharp and abrupt that a shoe heel could become caught in it’" Id. at 263. 16 In Felix-Cortes v. City of New York, 54 A.D.3d 358, 359, 863 N.Y.S.2d 72, 73(2d Dep't 2008), the court held that “[u]pon consideration of the photographic exhibits which were admitted into evidence at the trial, as well as the time, place, and circumstances of the accident there exists a valid line of reasoning and permissible inferences which could have led the jury to conclude that the defect which caused the plaintiff's accident was not trivial in nature.” In Abreu v. New York City Housing Authority, the court held that defendant's argument that a crack was trivial as a matter of law was properly rejected by the motion court on the basis of the photographs submitted by defendant depicting a lengthy irregularity in the cement that might have been capable of catching plaintiff's sandal. 61 A.D.3d 420-21, 876 N.Y.S.2d 50 (1st Dep't 2009) . Most importantly, the court emphasized that “even a trivial defect can sometimes have the characteristics of a snare or a trap.” Id. In Nin v. Bernard, photographs reveal that although the depression caused by the missing tiles was not very deep, its edges were sharp, resulting in an uneven platform which could cause someone to trip. 257 A.D.2d 417, 417-18, 683 N.Y.S.2d 237 (1st Dep’t 1999). The court held that “[t]he statement of defendants' expert that it was ‘impossible for all but the sharpest heel or toe to fall within the depression’ hardly constitutes a conclusive refutation of plaintiff's case.” 17 Id. at 418. The court further explained that “[t]he location of the defect, at the top step of a steep stairwell, further demonstrates that a jury question exists as to whether the depression constituted a dangerous or defective condition.” Id. In Rivas v. Crotona Estates Housing Development Fund Company, Inc., 74 A.D.3d 541, 542, 902 N.Y.S.2d 536 (1st Dep't 2010), the court held that the motion court improperly determined that dismissal of the complaint was warranted on the ground that the defect that allegedly caused plaintiff's accident was so trivial as to be nonactionable where the photographs do not unequivocally demonstrate that that defect is trivial. As this long line of cases demonstrates, the courts have chosen not to rely on photographs as the single evidence as a part of the inquiry as to whether the defect is trivial. True, they used photographs as one of many pieces of information since photographs can be helpful in certain circumstances to supplement other evidence. Still, their usage should be classified as necessary but not sufficient condition to establish a trivial defect. In our case, the Second Department simply reviewed the photographs of the defect taken years after the accident, took notice of the Appellant’s deposition and concluded that the defect was trivial. In fact, Appellant, in her deposition, merely stated that the photographs fairly and accurately depicted the 18 step and the "clump" that caused her to trip and fall. (Rec. 176-80). Essentially, she only identified the defect on the photographs and nothing else. Thus, her deposition provides no information helpful to the court for rendering its decision as to whether the defect was trivial or not, let alone whether the defect has the characteristics of a snare or a trap. Just the opposite, Appellant’s deposition raised material questions of fact to be determined by the jury as to whether the stair constituted a dangerous or defective condition. The order did not mention any other evidence or any reason for its conclusion why the defect was trivial as a matter of law. Other factors, such as the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury; whether the defect has the characteristics of a snare or a trap; testimony of a person with knowledge of the condition of the stairs at the time of the accident or expert testimony were outside of the perimeter of the court’s review. Therefore, the Appellate Division made it decision based on its review of the photographs alone thus usurping the jury’s province by making this determination of fact based on the single piece of evidence. Therefore, the Second Department improperly concluded that Appellants established, as a matter of law, that the defect was trivial in nature. 19 POINT 2 SECOND DEPARTMENT ERRED WHEN IT FAILED, AFTER FINDING BASED ON A BARE CONCLUSOTY ASSERTION THAT THE DEFECT WAS TRIVIAL ,TO CONSIDER WHETHER RESPONDENTS MET THEIR BURDEN TO SHOW THAT THEY NEITHER CREATED THE DEFECTIVE CONDITON NOR HAD ACTUAL OR CONSTRUCTIVE NOTICE OF ITS EXISTENCE The erroneous finding that the defect was trivial as a matter of law caused another severe error in the Order. The Second Department, upon finding the defect trivial ceased any further analysis and granted the motion for summary judgment. The court was supposed to determine whether Respondents met their initial burden of making a prima facie showing that they neither created the hazardous condition nor had actual or constructive notice of its existence. By completely skipping this inquiry, the Second Department essentially relieved Respondents from their obligation to come up with evidence establishing that they exercised their duty to keep the premises free from dangerous conditions. In fact, as described below, Respondents could not offer any evidence to meet their initial burden. It is axiomatic that a defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its 20 existence for a sufficient length of time to discover and remedy it. See Johnson v. Culinary Institute of America, 95 A.D.3d 1077, 1078, 944 N.Y.S.2d 307 (2d Dep’t 2012). "To meet its initial burden on the issue of . . . constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell." Id. Only after the movant has satisfied this threshold burden will the court examine the sufficiency of the plaintiff's opposition. See Birnbaum v. New York Racing Ass’n., Inc., 2008 N.Y. Slip. Op 09741 (2d Dep’t Dec. 9, 2008). It is crucial to understand that a property owner has a non- delegable duty to inspect and safely maintain the premises. See Lehman v. North Greenwich Landscaping, LLC, 16 N.Y.3d 747, 748, 917 N.Y.S.2d 621 (2011). If the defendant failed to inspect, that failure alone is evidence of negligence and the elements of constructive notice are irrelevant. See Weller v. Colleges of the Senecas, 217 A.D.2d 280, 285, 635 N.Y.S.2d 990 (4th Dep’t 1995). In our case, Respondents offered no evidence as to any inspection of the staircase close to the date of accident. Moreover, Respondents did not offer testimony of any person with knowledge of the condition of the stair at the time of the accident. The only testimony they provided was testimony of the building’s superintendent who 21 acknowledged that the stairs were painted before the accident, (Rec. 212-15), and who acknowledged that the second stair has “the different pattern, different surface” when he was shown the photographs of the stairs at issue. (Rec. 216). Otherwise, the superintendent’s testimony was devoid of substance as he could not confirm that he is responsible for safety inspections of the building or he had any knowledge of any records of safety inspections kept by the management. (R. 220-21). His testimony only refers to general cleaning practices and did not cover the safety of the stairs, especially in light of then-recent painting. Respondents also failed to show they had a specific maintenance plan in place, since such a showing is required in slip and fall cases to defeat summary judgment. See, e.g., Joachim v. 1824 Church Ave., Inc., 12 A.D.3d 409, 410, 784 N.Y.S.2d 157, 158 (2d Dep't 2004)(affirming denial of motion for summary judgment where defendant had no schedule for maintaining the floor); Van Steenburg v. Great Atl. & Pac. Tea Co., 235 A.D.2d 1001, 652 N.Y.S.2d 893 (3d Dep’t 1997)(same). Also, Respondents did not provide testimony of custodian of the safety inspection records. Moreover, Respondents did not offer testimony of porters who have first-hand knowledge as to the condition of the stairs. See, e.g. Porco v. Marshals Dep’t Stores, 30 A.D.3d 284, 285, 817 N.Y.S.2d 268 (1st Dep’t 2006)(“Defendants 22 offered no testimony from the employees working that day who, presumably, could have offered testimony regarding the last time the aisle was checked prior to the accident.”); Sledge v. Apple Maintenance & Services, Inc., 2009 NY Slip Op 50774(U) (Sup. Ct. Kings County April 23, 2009)(denying motion for summary judgment where defendant offers no testimony from the employee working that day who, presumably, could have offered testimony regarding the last time the bathroom was checked prior to the accident.) . In our case, the superintendent testified at his deposition that the building employs two porters whose duties include cleaning of the building. (Rec. 205, 207). He also testified that he sporadically checked the stairs after the porters cleaned them. (Rec. 207). Thus, the porters’ testimony is crucial as to the conditions of the stair at issue. Failure to provide their testimony is another example demonstrating that Respondents did not meet their initial burden of making a prima facie entitlement to summary judgment. Finally, since Respondents failed to eliminate all triable issues of fact as to whether they had notice of the condition complained of, they failed to establish the prima facie entitlement to judgment as a matter of law, and their motion for summary judgment dismissing the complaint should have been denied, regardless of the sufficiency of the opposing papers. See Winegrad v. New York 23 Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 (1985). Therefore, the Second Department by excusing Respondents from satisfying their initial burden incorrectly granted their motion for summary judgment. CONCLUSION For the foregoing reasons, the Order on appeal should be reversed, and the Appellant’s Complaint should be reinstated. Dated: Brooklyn, New York June 28, 2015 ____________________ Georgette Hamboussi, Esq. Law Offices of Vel Belushin, P.C. Attorneys for Plaintiff-Appellant 1712 Kings Highway, Suite 2 Brooklyn, New York 11229 (718) 787-4470
