McGrane-Mungo v. Dag Hammarskjold Tower

2024 NY Slip Op 33438(U)

• Court: New York Supreme Court, New York County
• Decided: September 30, 2024
• Docket: Index No. 159019/2020
• Status: Unpublished

Opinion

McGrane-Mungo v Dag Hammarskjold Tower 2024 NY Slip Op 33438(U) September 30, 2024 Supreme Court, New York County Docket Number: Index No. 159019/2020 Judge: Mary V. Rosado 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. INDEX NO. 159019/2020 NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 09/30/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice -------------------------------,--------X INDEX NO. 159019/2020 ANA MCGRANE-MUNGO, MOTION DATE 09/14/2024 Plaintiff, MOTION SEQ. NO. _ _ _0=-- -=0-- =-3_ _ - V -

DAG HAMMARSKJOLD TOWER, DAG HAMMARKSJOLD TOWER CONDOMINIUM, DAG HAMMARSKJOLD TOWER N.V., BOARD OF MANAGERS OF DAG HAMMARSKJOLD TOWER CONDOMINIUM, BROWN HARRIS STEVENS DECISION + ORDER ON NYS, LLC,DOUGLAS ELLIMAN PROPERTY MANAGEMENT, DOUGLAS ELLIMAN COMMERCIAL, MOTION LLC,DOUGLAS ELLIMAN, LLC D/B/A DOUGLAS ELLIMAN PROPERTY MANAGEMENT,

Defendant. ------------------- ---X

DAG HAMMARKSJOLD TOWER CONDOMINIUM, BOARD Third-Party OF MANAGERS OF DAG HAMMARSKJOLD TOWER Index No. 595219/2022 CONDOMINIUM, DOUGLAS ELLIMAN PROPERTY MANAGEMENT

Plaintiff,

-against-

CONSTANTINE DEMETRACOPOULOS, HOSPITAL FOR SPECIAL SURGERY

Defendant. ------------------------,-----X

The following e-filed documents, listed by NYSCEF document number (Motion 003) 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89,117,118,119,120,121,122,123,124,125,132,133,134,135,136, 137, 138, 139, 140 were read on this motion to/for JUDGMENT-SUMMARY

Upon the foregoing documents, Defendants/Third-Party Plaintiffs Dag Hammarsjkold

Tower Condominium, Board of Managers of Dag Hammarskjold Tower Condominium, and

Douglas Elliman Property Management (collectively "Movants") motion for summary judgment

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dismissing Plaintiff Ana McGrane-Mungo ("Plaintiff') is denied. Plaintiffs cross-motion for

summary judgment on the issue of liability against Movants is also denied.

I. Background

This is an action arising from personal injuries allegedly sustained when Plaintiff fell on

the sidewalk outside of240 E. 47th Street, New York, New York (the "Premises") on July 3, 2018

(see generally NYSCEF Doc. 1).

Plaintiff claims that she tripped on an uneven part of the sidewalk (NYSCEF Doc. 86 at

32:4-7). She testified her right foot was on the ground and she felt that the ground was uneven

which caused her to lose her balance (id. at 37). 1

A handyman employed by Movants, Tony Radoina, testified he has been working at the

Premises since 2005 (NYSCEF Doc. 88 at 9:22-23) and his job is to maintain and to clean the

Premises (id. at 10). Mr. Radoina testified that Defendant Douglass Elliman Property Management

was in charge of managing the Premises as property manager (id. at 22). Mr. Radoina testified that

from 2005 until the time of the incident, there were no repairs to the sidewalks in front of the

Premises (id. at 26:6-9). Mr. Radoina testified that it is a routine part of his job to inspect the

sidewalk on a daily basis (id. at 49:2-25).

Plaintiff produced an expert affidavit from Adam C. Cassel, P.E. (NYSCEF Doc. 122). Mr.

Cassel measured the sidewalk where Plaintiff fell and found the elevation to be ½ inch high and

greater along the expansion joint of the sidewalk. He also found there was a slight downward curve

that contributed to the uneven condition. In his opinion, the raised and uneven surface constituted

a tripping hazard. He also found a violation ofNew York City Administrative Code §19-152. Mr.

1 Plaintiff also produced the deposition transcript of non-party Kimberly Cabello, however the transcript was never executed and is therefore inadmissible (Li Xian v Tat Lee Supplies Co., Inc., 170 AD3d 538 [ I st Dept 2019]). 159019/2020 MCGRANE-MUNGO, ANA vs. DAG HAMMARSKJOLD TOWER Page 2 of6 Motion No. 003

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Cassel stated the sidewalk flag should have been removed and replaced to ensure a flat walking

surface.

Movants argue they are entitled to summary judgment because they argue Plaintiff fell on

a non-actionable trivial defect. Movants rely on a photograph exchanged by the parties which

identifies the defect which caused Plaintiff to fall to be a less than a half inch height differential.

They argue First Department precedent has held when the defect arises from a height differential

of less than a half inch, the defect should be considered non-actionable. They also argue they did

not create the alleged defect or have notice of it.

Plaintiff cross-moves for summary judgment. Plaintiff argues that pursuant to the affidavit

of her engineering expert, the height differential is greater than ½ an inch which is a violation of

the New York City Administrative Code. Mr. Cassel also opines that the defect has existed for

months, if not years, which establishes constructive notice. Plaintiff also argues that Movants have

failed to submit any expert affidavit and therefore cannot meet their prima facie burden of showing

the sidewalk defect is trivial. In any event, Plaintiff argues Movants' own papers are inconsistent

as they argue at the same time that the defect is trivial but was also open and obvious.

In opposition and in reply, Movants argue that the photograph of the measurement

contained in the affidavit of Mr. Cassel shows a height differential that is less than a half-inch and

therefore does not trigger the New York City Administrative Code. Movants also argue that Mr.

Cassel's measurements state Plaintiff was walking in a northeasterly direction when her testimony

was that she was walking in a southwesterly direction. 2

2 Plaintiff requested permission to file a sur-reply. However, no permission to file the sur-reply was granted. Therefore, the Court disregards Plaintiff's papers which were filed as an impermissible sur-reply. 159019/2020 MCGRANE-MUNGO, ANA vs. DAG HAMMARSKJOLD TOWER Page 3 of6 Motion No. 003

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II. Discussion

A. Standard

"Summary judgment is a drastic remedy, to be granted only where the moving party has

tendered sufficient evidence to demonstrate the absence of any material issues of fact." (Vega v

Restani Const. Corp., 18 NY3d 499, 503 [2012]). The moving party's "burden is a heavy one and

on a motion for summary judgment, facts must be viewed in the light most favorable to the non-

moving party." (Jacobsen v New York City Health and Hosps. Corp., 22 NY3d 824, 833 [2014]).

Once this showing is made, the burden shifts to the party opposing the motion to produce

evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact

which require a trial (See e.g., Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

B. The Movants' Motion

Viewing the facts in the light most favorable to the non-movant, the Plaintiff, and in the

absence of any expert affidavit proffered by the Movants, the Court finds there are triable issues

of fact precluding summary judgment. Specifically, there is a triable issue of fact as to whether the

height differential where Plaintiff fell constitutes an actionable defect (see Shapiro v 89th Street

Dev. Co. LLC, 220 AD3d 499 [1st Dept 2023] [triable issue of fact as to whether height differential

constitutes ¼ of an inch or¾ of an inch]; Narvaez v 29 I 4 Third Ave. Bronx, LLC, 88 AD3d 500,

501 [1st Dept 2011]). As the Court of Appeals has stated, whether there is a defective condition to

create liability "depends on the particular facts and circumstances of each case and is generally a

question of fact for the jury" (Trincere v Co. of Suffolk, 90 NY2d 976 [1997]; see also McCabe v

Avalon Bay Communities, Inc., 177 AD3d 487 [1st Dept 2019]).

Importantly, Movants have failed to provide their own expert affidavit offering

measurements or date related to the alleged defect, while Plaintiffs expert opines that the height

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differential constitutes a statutory violation of the New York City Administrative Code. Based on

this record and given Plaintiffs expert's opinion that a statutory violation exists, the Court cannot

grant summary judgment on Movants' trivial defect defense. For the same reasons, the Court

cannot grant Movants summary judgment based on their argument that the defect was not

inherently dangerous. There is likewise a triable issue of fact as to whether Movants had actual or

constructive notice, although Mr. Radoina testified that he inspected the sidewalk daily, Plaintiffs

expert opined that the alleged defect did not develop suddenly or rapidly and existed for at a

minimum multiple months. It is for a jury to decide whether the defect is trivial and if it is not,

whether the Movants had notice of it.

C. Plaintiff's Cross-Motion

Viewing the facts in the light most favorable to the non-movant on Plaintiffs cross-motion,

the Court finds there are triable issues of fact which preclude summary judgment. In particular,

there is a dispute as to the credibility of Plaintiffs expert report and his measurements, as his

recitation of the facts states Plaintiff was walking in a northeast direction while Plaintiff testified

she was walking in a southerly direction. Based on the record before the Court, it is unclear the

impact this may have on Plaintiffs expert's measurements and whether a statutory violation exists.

Thus, this is an issue which cannot be disposed of on summary judgment.

Moreover, there is a triable issue of fact as to whether Movants had notice of the alleged

defect. The Court cannot glean from the images Plaintiff provided whether a ½ inch height

differential existed, and Plaintiffs expert provides no methodology as to how he is able to examine

the grainy photographs to spot a½ inch height differential. Moreover, Movants' witness testified

he inspected the sidewalk regularly and did not see any defects, nor did he ever receive any

complaints (see, e.g. Abraham v Dutch Broadway Associates LLC, 192 AD3d 550 [1st Dept 2021];

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Roa v City ofNew York, 188 AD3d 504 [1st Dept 2020] [finding google map photos inconclusive];

Ross v Betty G Reader Revocable Trust, 86 AD3d 419 [1st Dept 2011]). Therefore, viewing the

facts in the light most favorable to the non-movant, and based on certain inconsistencies in the

record, Plaintiffs cross-motion for summary judgment is denied.

Accordingly, it is hereby,

ORDERED that Defendants/Third-Party Plaintiffs Dag Hammarsjkold Tower

Condominium, Board of Managers of Dag Hammarskjold Tower Condominium, and Douglas

Elliman Property Management motion for summary judgment dismissing Plaintiff Ana McGrane-

Mungo' s Complaint is denied; and it is further

ORDERED that Plaintiffs cross-motion for summary judgment on the issue of liability is

denied; and it is further

ORDERED that within ten days of entry, counsel for Plaintiff shall serve a copy of this

Decision and Order, with notice of entry, on all parties via NYSCEF.

This constitutes the Decision and Order of the Court.

9/30/2024 DATE HO . MARY V. ROSADO, J.S.C.

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED ~ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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