De Costa v. S.K.I. Realty, Inc.

2024 NY Slip Op 34248(U)

• Court: New York Supreme Court, Kings County
• Decided: December 2, 2024
• Docket: Index No. 527113/2021
• Status: Unpublished

Opinion

De Costa v S.K.I. Realty, Inc. 2024 NY Slip Op 34248(U) December 2, 2024 Supreme Court, Kings County Docket Number: Index No. 527113/2021 Judge: Francois A. Rivera Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 12/02/2024 04:59 PM INDEX NO. 527113/2021 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 12/02/2024

At an IAS Term, Part 52 of the Supreme Court of the State ofNew York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 2nd day of December 2024

HONORABLE FRANCOIS A. RIVERA -------------------------------------------------------------------X FRANCIS DE COSTA, DECISION & ORDER

Plaintiff, Index No.: 527113/2021

- against - Oral Argument: 10/10/2024

S.K.I REAL TY, INC., Cal. No.: 20

Defendant. Ms. No.: 1 -------------------------------------------------------------------X Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on January 5, 2024, under motion sequence number one, by S.K.I. Realty, Inc. (hereinafter defendant or movant) for an order pursuant to CPLR 3212 awarding defendant summary judgment in its favor on the issue of liability and dismissing the complaint of plaintiff Francis De Costa on several grounds. The motion is opposed.

-Notice of motion -Affirmation in support Exhibits A-P -Statement of material facts -Affirmation in opposition -Counter Statement of material facts -Affirmation in reply Exhibit Q

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BACKGROUND

On October 22, 2021, the plaintiff commenced the instant action by filing a

summons and complaint with the Kings County Clerk's office (KCCO). On March 4,

2022, the defendant interposed and filed a verified answer with the KCCO. On

November 7, 2023, plaintiff filed a note of issue.

The complaint alleges the following salient facts among others. On October 7, 2021, plaintiff was lawfully upon the sidewalk in front of the premises located at 345

East 685 Street, New York, New York, adjacent to the tree area, when he was caused to

fall to the ground (hereinafter the subject accident) due to a dangerous, defective

condition of the public sidewalk abutting the property owned by the defendant.

The subject accident was caused because of the negligence and carelessness of the

defendant, its agents, servants and/or employees, in the negligent ownership, operation,

alteration, maintenance, management, and control of the sidewalk in front ofsaid

premises. As a result of the subject accident the plaintiff was caused to suffer severe and

serious personal injury.

LAW AND APPLICATION

The plaintiff commenced this action against the defendant to recover damages for

personal injuries that he alleged sustained on October 7, 2021, when he tripped and fell

on an uneven sidewalk condition abutting a property owned by the defendants in New

York County. The defendant moved for an order pursuant to CPLR 3212 dismissing the

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instant action pursuant to the trivial-defect doctrine and on the basis that defendant did

not owe or breach a duty of care that proximately caused the plaintiffs claimed damages.

It is well established that summary judgment may be granted only when it is clear

that no triable issue of fact exists (Alvarez v Prospect Hosp., 68 NY2d 320,324 (1986]).

The burden is upon the moving party to make a prima facie showing that he or she is

entitled to summary judgment as a matter of law by presenting evidence in admissible fonn demonstrating the absence of material facts (Giuffrida v Citibank Corp., 100 NY2d

72, 81 (2003]).

A failure to make that showing requires the denial of the summary judgment

motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d

1062, 1063 (1993], citing Alvarez, 68 NY2d at 324). Ifaprima facie showing has been

made, the burden shifts to the opposing party to produce evidentiary proof sufficient to

establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

"A motion for summary judgment shall be supported by affidavit, by a copy of the

pleadings and by other available proof, such as depositions and written admissions"

(Poon v Nisanov, 162 AD3d 806, 806 [2d Dept 2018], quoting CPLR 3212 [b]). "The

moving party's submissions must show 'that there is no defense to the cause of action or

that the cause of action or defense has no merit"' (Poon, 162 AD3d at 806, quoting CPLR

3212 [b]).

"A property owner may not be held liable for trivial defects, not constituting a trap

or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip" Page 3 of 10

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Abreu v Pursuit Realty Group, LLC, -NY3d-, 2024 Slip Op 05781 [2024], citing

Trincere v County ofSuffolk, 90 NY2d 976, 977 [1997]. "A defendant seeking dismissal

of a complaint on the basis that [an] alleged defect is trivial must make a prima facie

showing that the defect is, under the circumstances, physically insignificant and that the

characteristics of the defect or the surrounding circumstances do not increase the risks it

poses. Only then does the burden shift to the plaintiff to establish an issue of fact" (id., quoting Clarke v 90 S. Park Owners, Inc., 228 AD3d 722, 723 [2d Dept 2024].

''In determining whether a defect is trivial, the court must examine all 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"' (id., quoting Trincere,

90 NY2d at 978). "There is 'no minimal dimension test' or 'per se rule' that a defect

must be of a certain height or depth in order to be actionable" (id., quoting Trincere,-90

NY2d at 977; Campbell-Ramdin v Town ofHempstead, 221 AD3d 1049, 1050 [2d Dept

2024]). "Photographs which fairly and accurately represent the accident site may be used

to establish that a defect is trivial and not actionable" (id., quoting Schenpanski Promise

Deli, Inc., 88 AD3d 982, 984 [2d Dept 2011].

"Section 7-210 of the Administrative Code of the City ofNew York

unambiguously imposes a nondelegable duty on certain real property owners to maintain

city sidewalks abutting their land in a reasonably safe condition" (Spinelli v Huang; 225

AD3 d 917, 918 [2d Dept 2024 ], quoting Vasquez v Giandon Realty, LLC, 189 AD3d

1120, 1120 [2d Dept 2020]; Wendy-Geslin v Oil Doctors, 226 AD3d 727, 729 [2d Dept 4

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2024]). "However, Administrative Code of the City ofNew York§ 7-210 does not

iinpose strict liability upon the property owner; and the injured party has the obligation to

prove the elements of negligence to demonstrate that an owner is liable" ( Wendy-Geslin,

226 AD3d at 729, quoting Cutty v Eastern Extension, LLC, 202 AD3d 907, 908 [2d Dept

2022]. ''Thus, to prevail on its summary judgment motion, a defendant is required to

establish_ that it neither created the alleged dangerous condition nor had actual or constructive notice of its existence for a sufficient length of time to have discovered and

remedied it" (Wendy-Geslin, 226 AD3d at 729-730, citing Vasquez, 189 AD3d at 1120).

In support of the motion the defendant proffered, among other things, the

deposition transcript of the plaintiff, the defendant's building superintendent, Noel

Neylon, and the plaintiffs son in law, Evan Chacker, as well as several photographs and

a video of the subject accident. The Court took note that the photographs that were

referenced in the affirmation of defendant's counsel were from a different accident in a

different lawsuit. The defendant also submitted a report by Timothy Joganich, a

professed expert in the field of mechanical engineering, biomechanics, and human

factors.

The defendant made several contentions as expressed in the affirmation of their

counsel in support of the motion. First, they contended that the plaintiff did not know

what caused him to fall. Second, they contended that the unlevel sidewalk condition did

not constitute an unreasonably dangerous condition. Third, they contended that the

defendant did not have actual or constructive notice of the allegedly dangerous condition. Page 5 oflO

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Fourth, they contended that the elevation differential of the sidewalk, which plaintiff

claimed he tripped on, was trivial and not actionable.

"[W]hether 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, 90 NY2d at 977]). "However, a

defendant can make its prima facie showing of entitlement to judgment as a matter of law

by establishing that the plaintiff cannot identify the cause of his or her fall without

engaging in speculation" (Mitgang v PJ Venture HG, LLC, 126 AD3d 863, 863-864 [2d

Dept 2015]). "[A] plaintiffs inability to identify the cause of the fall is fatal to the cause

of action, because a finding that the defendant's negligence, if any, proximately caused

the plaintiffs injuries would be based on speculation" (Rivera v J. Nazzaro Partnership,

L.P., 122 AD3d 826, 827 [2d Dept 2014]). "That does not mean that a plaintiff must

have personal knowledge of the cause of his or her fall. Rather, it means only that a

plaintiffs inability to establish the cause of his or fall-whether by personal knowledge

or by other admissible proof-is fatal to a cause of action based on negligence"

(Izaguirre v New York City Tr. Auth., 106 AD3d 878 [2d Dept 2013], citing Morgan v

Windham Realty, LLC, 68 AD3d 575, 576 [2d Dept 2005]).

The defendant pointed to the plaintiffs deposition testimony in which he was not

sure of the cause of his fall. However, the defendant also included the deposition

testimony of Evan Chacker, the plaintiffs son in law. The plaintiffs son-in-law testified

at his deposition that he witnessed the plaintiffs fall. He also testified that he saw the 6

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unlevel sidewalk condition which caused the plaintiff to fall. He described it as a one-

inch differential and circled the condition in a photograph presented to him at the

deposition.

Defendant also contended that the unlevel sidewalk condition did not constitute an

unreasonably dangerous condition and was trivial and not actionable. This contention

was premised on the opinion of Timonthy Joganich, as expressed in his report and the video of the subject accident as analyzed by him. Timothy Joganich's report, however,

was unswom and not in admissible form. It is therefore disregarded.

The Court reviewed the same proffered video of the subject accident that was

reviewed by Joganich. However, the vantage point of the depicted moving image was

from too far a distance and from an angle which made the condition of the unleveled

sidewalk condition not visible.

The defendant has claimed that they had no actual or constructive notice of the

alleged dangerous condition. The defendant proffered the testimony of Noel Neylon,

their building superintendent, in support of this contention. A defendant has constructive

notice of a defect when the defect is "visible and apparent" and has existed "for a

sufficient length of time prior to the accident" that it reasonably could have been

discovered and corrected (Gordon v American Museum ofNatural History, 67 NY2d 836,

837 [1986]; Shehata v City ofNew York, 128 AD3d 944, 946 [2d Dept 2015]). "To meet

its prima facie burden on the issue of lack of constructive notice, the defendant must offer

some evidence as to when the area in question was last cleaned or inspected relative to Page 7 of 10

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the time when the plaintiff fell" (Paraskevopoulos v Voun Corp., 216 AD3d 983,984 [2d

Dept 2023], citing Przyzywalny v New York City Tr. Auth., 69 AD3d 598, 599 [2d Dept

2010]). Noel Neylon testified that he did not remember when he last inspected the

condition of the sidewalk prior to the subject accident.

The defendant submitted an affirmation in reply. The reply affirmation referred to

an annexed affidavit by Timothy Joganich and another copy of his previously annexed

unswom report. The J oganich affidavit was proffered to make his previously unswom

report admissible. However, to meet their prima facie burden for entitlement to summary

judgment, the defendants could not rely on evidence submitted for the first time in their

reply papers (see L 'Aquila Realty, LLC v Jalyng Food Corp., 103 AD3d 692, 692 [2d

Dept 2013]).

Assuming arguendo that Joganich's report was admissible, for the reasons set forth

below, it has little or no probative value. The standard for admission of expert witness

testimony is whether the expert's opinion helps to clarify an issue calling for technical

knowledge possessed by an expert and beyond that of the typical juror (Kohler v Barker,

147 AD3d 1037, 1038 [2d Dept 2017]_, citing De Long v County ofErie, 60 NY2d 296,

307 [1983]). An expert's opinion should be "relevant, detailed, and helpful to the

resolution of issues on summary judgment or at trial" (Snyder v AFCO Avports

Management, LLC, 219 NYS3d 360,369 [2d Dept 2024]). "An expert's conclusory or

speculative opinion is ofno probative force" (id.). "The admissibility and scope of expert

testimony is a determination within the discretion of the trial court" (Kohler, 147 AD3d 8

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at 1038; see De Long, 60 NY2d at 307). "Generally, it is for the trier of fact to determine

the issue of proximate cause" (see Tsarenkov v Rosenbaum, 23 l AD3d 1184, 1184 [2d

Dept 2024], quoting Soto v Colletta, 225 AD3d 819, 820 [2d Dept 2024]; Dolce v

Cucolo, 106 AD3d 1431, 1432 [3d Dept 2013]).

Here, it is noted that Joganich did not inspect the location of the subject accident.

Second, he stated that the location of the subject accident was repaired after the plaintiffs

accident (see Brothers v Nisan Maintenance Corp., 219 NYS3d 167, 168-169 [2d Dept

2024]). Joganich then opined, inter alia, that the subject accident location did not

constitute an unreasonably dangerous condition for someone exercising a reasonable

degree of inattentiveness. However, as previously indicated, the video Joganich reviewed

was from a vantage point where you cannot clearly see the alleged defect. Joganich

further opined that the mechanism of plaintiffs fall was a foot scuff due to insufficient

clearance between the sole of his right sandal and the sidewalk, which may have been

compounded by the sandals that he was wearing at the time given their limited coupling

with the feet.

It is not beyond the ken of a jury to assess from the facts and surrounding

circumstances what caused an individual to trip and fall (see Snyder, 219 NYS3d at 369,

citing De Long vErie County, 60 NY2d 296, 307 [1983]). Joganich's opinion does not

call for technical knowledge beyond that of a typical juror, but rather speculates as to the

cause of the of the trip and fall. It would therefore be inadmissible as invading the

province of the fact finder, even if sworn. Page 9 of 10

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In sum, the defendant did not make a p.rima facie showing of entitlement to

summary judgment dismissing the complaint. Accordingly, the motion is denied

regardless of the sufficiency of the plaintiffs opposing papers (see Dowling v Valeus, 119

AD3d 834,835 [2d Dept 2014], citing Winegradv New York Univ. Med. Ctr., 64 NY2d

851, 853 [1985]).

CONCLUSION

The motion by defendant S.K.I. Realty, Inc. for an order pursuant to CPLR 3212

(b) awarding defendant summary judgment in its favor on the issue of liability and

dismissing the complaint of plaintiff Francis De Costa is denied.

The foregoing constitutes the decision and order of this Court.

ENTER:

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