The following papers numbered E46 to E59 and E64 to E67 read on this motion by defendant, 89-66 Realty Corp. (“movant”), for an order, pursuant to CPLR 3212, granting summary judgment, dismissing the complaint.Papers NumberedNotice of Motion — Affirmation — Exhibits E46-E56, E57-E59Affirmation in Opposition — Exhibits E64-E66Reply Affirmation E67 Upon the foregoing papers, it is ordered that the motion is determined as follows:This is an action to recover damages for personal injuries that plaintiff alleged sustained on June 27, 2015, as a result of a trip and fall on a sidewalk abutting premises, located at 89-66 162 Street, in the County of Queens, City and State of New York.On a motion for summary judgment, a movant “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; see Smalls v. AJI Indus., Inc., 10 NY3d 733 [2008]).As an owner, movant “owes a duty to maintain the property in a reasonably safe condition” (Farrar v. Teicholz, 173 AD2d 674 [2d Dept 1991]; see Mullen v. Helen Keller Servs. for Blind, 135 AD3d 837 [2d Dept 2016]). “Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner” (Hausser v. Giunta, 88 NY2d 449 [1996]; James v. Blackmon, 58 AD3d 808 [2d Dept 2009]). Since 2003, however, the Administrative Code of the City of New York §7-210 (a) has provide that it is “the duty of the owner of real property abutting any sidewalk…to maintain such sidewalk in a reasonably safe condition” (Vucetovic v. Epsom Downs, Inc., 10 NY3d 517 [2008]). This section “must be strictly construed” because it is a “legislative enactment[] in derogation of common law” which “creat[es] liability where none previously existed” (id. at 521 [internal quotation marks and citation omitted]). Therefore, a non-delegable duty to maintain the public sidewalk has been placed only upon the owner of property (see Gyokchyan v. City of New York, 106 AD3d 780 [2d Dept 2013]; Serano v. New York City Hous. Auth.,66 AD3d 867 [2d Dept 2009]; James v. Blackmon, 58 AD3d at 809).Movant seeks summary judgment solely on the issue of liability contending that the defect which allegedly caused plaintiff’s accident was de minimus in nature and therefore, not actionable. In support, movant submits plaintiff’s deposition testimony, the photographs on which plaintiff identified the defect which caused her to fall and deposition testimony of the owner of the subject property, Alan Carp, who testified that the subject sidewalk was repaired ten years prior to plaintiff’s accident.Generally, the issue of whether a dangerous or defective condition exists as to create liability depends on the particular facts and circumstances of each case, and is properly a question for the jury (Trincere v. County of Suffolk, 90 NY2d 976 [1997]; Copley v. Town of Riverhead, 70 AD3d 623 [2d Dept 2010]). When determining whether a defect is trivial, the court must examine all of the facts including the width, depth, elevation, irregularity, and appearance of the defect, as well as the time, place, and circumstance of the injury” (Bolloli v. Waldbaum, Inc., 71 AD3d 618 [2d Dept 2010]). Further, the evidence should be liberally construed in a light most favorable to the non-moving party (Santiago v. Joyce, 127 AD3d 954 [2d Dept 2015]; Nash v. Port Washington Union Free School Dist., 83 AD3d 136 [2d Dept 2011]).In the case at bar, movant has failed to make a prima facie showing that the alleged defect was trivial or minor (Herring v. Lefrak Organization, 32 AD3d 900 [2d Dept 2006]). The disagreement between the parties as to whether or not the subject condition constitutes an actionable defect, together with the fact that the photographs submitted do not demonstrate the height of the condition, and that no expert investigated the site on behalf of either party, or submitted an affidavit in support of or in opposition to this motion, raises a question of fact, which must be tried by a jury (see Grundstrom v. Papadopoulos, 117 AD3d 788 [2d Dept 2014]). Movant has not established a prima facie case despite plaintiff’s estimated guess that the height difference may have been an inch or less. Additionally, the photographs raise a triable issue of fact as to whether the visible and apparent condition existed for a sufficient length of time to constitute constructive notice (see Alcantara v. New York City Tr. Auth., 140 AD3d 808 [2d Dept 2016]; Gonzalez v. New York City Tr. Auth., 87 AD3d 675 [2d Dept 2011]). Therefore, movant has failed to establish its prima facie entitlement to judgment as a matter of law.Since movant has failed to meet their initial burden, it is not necessary to consider whether plaintiff’s opposition papers are sufficient to raise a triable issue of fact (see Torres v. Garcia, 59 AD3d 705 [2d Dept 2009]).Accordingly, the motion for summary judgment on the issue of liability, is denied.Dated: January 15, 2019
