Flanders v. Sedgwick Avenue Associates, LLC

2017 NY Slip Op 8718, 156 A.D.3d 504, 65 N.Y.S.3d 443, 2017 WL 6375568

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 2017
• Docket: 5153 301886/13
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered December 1, 2016, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Owner defendants failed to make a prima facie showing that they lacked actual or constructive notice of the defect in the sidewalk that allegedly caused plaintiff to trip and fall (see Uncyk v Cedarhurst Prop. Mgt, LLC, 137 AD3d 610, 610 [1st Dept 2016]). A jury could infer from plaintiff’s photograph of the defective condition that the condition existed for a sufficient length of time for owner defendants to have discovered it and had time to repair it (see Taylor v New York City Tr. Auth., 48 NY2d 903, 904 [1979]).

In opposition, plaintiff raised an issue of fact as to whether the defect was actionable and not trivial. A photograph of the sidewalk at the time of plaintiff’s accident showed the condition of the sidewalk to be well-worn, with cracks between the slabs, and the defect shown in close-up appeared to be capable of causing plaintiff to trip and fall (see Dominguez v OCG, IV, LLC, 82 AD3d 434 [1st Dept 2011]).

Concur—Manzanet-Daniels, J.R, Mazzarelli, Kapnick and Webber, JJ.