Recitation, as required by CPLR 2219 of the papers considered in the review of this motion as indicated below: Papers Numbered Notice of Motion, Affirmation in Support & Exhibits 1 Memorandum in Law in Support of Motion for Summary Judgment 2 Affirmation in Opposition to Motion for Summary Judgment 3 Memorandum of Law in Opposition to Motion for Summary Judgment 4 Reply Affirmation 5 AMENDED DECISION/ORDER Upon the foregoing cited papers the Decision/Order on this motion is decided as follows: The plaintiff commenced this action after she tripped and fell while exiting the courtyard/walkway connected to an adjacent walkway located at 208 West 151st Street, New York, NY. The defendants move for summary judgment and to dismiss the complaint against them claiming they did not breach a duty to the plaintiff. The motion is opposed by the plaintiff. According to the plaintiff’s Bill of Particulars she allegedly was injured on June 2, 2017 as she exited the building. She fell on the courtyard/walkway and the sidewalk abutting the defendants’ building. She was shown a photograph during deposition and was asked to demonstrate where in the photograph her accident occurred. The plaintiff identified the location by circling a man dressed in red sitting on the walkway of the premises ( see Ex “D” pg. 40-41 ). The building’s courtyard/walkway is depicted in one of the photos submitted in support of the motion and the left side of the transition step appears to be higher then the right side of the transition step. The transition step goes from one side of the building to the other side of the building. Ms. Rice testified that as she was walking on the courtyard/walkway to leave the premises, she stepped down and fell. She said the floor was dry and it was not raining at the time (see Ex. “D” pg. 34 lines 10-17). She was shown a picture of the site of the accident and explains that as she “was entering on the right side. I came in from the right side…. As I walked out, I fell” (exhibit “D” pg. 42 lines 5-10). When asked if she observed what caused the fall, she answered, “I couldn’t really see. Because I fell, and it looked like, when you were coming in, the right side is flat. So when you walked up, you really can’t see that the left side is higher. I walked out assuming that the left side was like the right side. Down I went” (Exhibit “D” pg. 42 lines 13-19). The defendants argue in support of their motion that the plaintiff failed to establish a prima facie case of negligence. They contend that landowners who hold their property open to the public have a general duty to maintain the property in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries (Stemberga v. Term Security Corp., 292 AD2d 372 [2nd Dept 2002). Liability will not attach, however, when an accident is caused by a condition that is open, obvious, and, as a matter of law, not inherently dangerous (see Zimkind v. Costco Wholesale Corp., 12 AD3d 593 [2nd Dept 2004]). “For a condition to be open and obvious as a matter of law, it must be one that could not be overlooked by any observer reasonably using his or her ordinary senses” (Garrido v. City of New York, 9 AD3d 267 [1st Dept 2004]). The defendants contend that part of the building structure is situated on a slope. The slope created the elevational difference between the walkway and the adjacent sidewalk. They claim that the elevation feature is inherent to the premises and part of the structure of the building. They argue that such variations and changes in elevation adjacent to sloping sidewalks are not uncommon in New York City. The elevation between the walkway and the sidewalk is readily observable to someone reasonably using their senses. When there is a difference in elevation that is readily observable to those employing the reasonable use of their senses, it does not present an undue risk of harm (see Capozzi v. Huhne, 14 AD3d [2005]). The defendants received no prior complaints regarding the elevation difference. They claim that the case law and photographs demonstrate that the alleged condition was as a matter of law, open and obvious and not inherently dangerous. The defendants also contend that they did not violate §7-210 of the Administrative Code of the City of New York. The code states in pertinent part: “It shall be the duty of the owner of real property abutting any sidewalk, including but not limited to, the intersection quadrant for corner property, to maintain such sidewalk in a reasonably safe condition”. They also argue that Property owners have a duty to maintain their property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see, Basso v. Miller, 40 NY2d 233 [1976]). “A court is not precluded from granting summary judgment, where the condition complained of was both open and obvious and, as a matter of law, not inherently dangerous” (Schulman v. Old Navy/The Gap., Inc., 45 AD3d 475 [1st Dept 2007] quoting Cupo v. Karfunkel, 1 AD3d 48, 52 [2nd Dept. 2003]). “In such circumstances, the condition which caused the accident cannot fairly be attributed to any negligent maintenance of the property” (Boyd v. New York City Hous. Auth, 105 AD3d 542 [1st Dept. 2013] quoting Cupo 1 AD3d at 52). The plaintiff did not testify that there were broken or damaged sections of the courtyard/walkaway or the sidewalk that caused her injuries. The premises were properly maintained and the defendants were in compliance with Administrative Code §7-210. The defendants have proven that they did not violate Administrative Code §7-120. The defendants also claim that they did not create or cause the condition that was a proximate cause of the plaintiff’s accident. The owner of property abutting a public roadway and/or sidewalk will not be held liable if it is shown that the landowner did not create the alleged defect that was the proximate cause of the plaintiff’s accident (Jacobs v. Village of Rockville Ctr., 41 AD3d 539 [2nd Dept 2007]). They argue that the elevation difference was not caused by the defendants, and it is inherent to the structure of the building. Mr. Gjonaj, is the president of West 151st Street Realty Co., LLC, and testified that West 151st Street Realty Co., LLC., owned the premises located at 208 West 151st Street in Manhattan on June 2, 2017. He stated that the elevation difference was present at the time he purchased the building (see Exhibit “E” pg. 73 lines 5-8). The defendants also argue that “an abutting landowner may also be found responsible for injuries incurred on a sidewalk which is put to special use, when the plaintiff proves that (1) the special use caused a defective condition (2) that it was a proximate cause of the accident” (see Blum v. City of New York, 267 AD2d 341 [2nd Dept 1999]). The special use must be different from the “normal intended use of the public way” (Loiaconi v. Village of Tarrytown, 36 AD3d 864 [2nd Dept 2007] quoting Minott v. City of New York, 230 AD2d 719, 720 [1996]). The plaintiff did not allege that the defendants had any special use of the sidewalk or walkway. The defendants have demonstrated that they did not maintain any special use of the sidewalk or walkway where the plaintiff fell. In support of their motion, the defendants submit an affidavit from Bernard P. Lorenz, a licensed and registered professional engineer. He has over thirty-seven years of experience in civil engineering and forensic engineering investigation and evaluation of design and construction elements relating to civil engineering and construction safety. Mr. Lorenz states that the building was built in 1929 and was built adjacent to a downward sloping sidewalk. He claims that the elevation difference between the top of the courtyard surface and the adjacent concrete sidewalk at the left, center and right side measured 5-7/8 inches, 2-3/8 inches and 5/8 of an inch respectively. The slope downward at the same location was 1.7 degrees, 1.6 degrees and .6 degrees respectively. He concluded that “the change in elevation between the surface of the courtyard and the adjacent sidewalk was not in violation of any known applicable code or standard”. He stated that “the change in elevation across the width of the courtyard relative to the sidewalk surface occurred due to the downward slope (from right to left) of the adjacent sidewalk”. He concluded that based on his professional experience, such variations and changes in elevation are not uncommon in New York City. The change in elevation across the width of the courtyard is inherent to the premises and part of the structure building. He stated that the inspected area of the courtyard and sidewalk were in good condition. He concludes that it is his opinion,” to a reasonable degree of engineering and construction safety certainty that Ms. Rice’s accident was not due to any impropriety on the part of the defendants as the inspected area of the courtyard and sidewalk were in good condition.” “With reasonable observations along her intended path of travel, a reasonable person would have been able to see the change in elevation between the courtyard and adjacent sidewalk and her accident, in all probability, would not have occurred”. The defendants argue that the plaintiff’s reliance on the doctrine of Res Ipsa Loquitor is misplaced. The plaintiff does not plead Res Ipsa Loquitor in their verified complaint. This argument is moot. The defendants argue that the deposition testimony of the plaintiff, Mr. Gjonaj, the expert affidavit by Mr. Lorenz establish, as a matter of law, there is no basis for liability to be assessed against the defendants. They claim the defective and hazardous condition is open and obvious and there is no proof that defendants committed any acts of negligence. The height differential at the location is inherent to the structure of the building. They argue there are no triable issues of fact and are entitled to summary judgment. The defendants have met their prima facie burden to grant summary judgment in their favor. The burden now shifts to the plaintiff to raise a triable issue of fact. The plaintiff contends that the defendants failed to remove all issues of fact as to whether the defendants negligently maintained its premises and allowed an “optical confusion” to exist at the location that proximately caused the plaintiff’s injuries. Optical confusion occurs when conditions in an area create an illusion of a flat surface, visually obscuring any steps (Saretsky v. 85 Kenmare Realty Corp., 84 AD3d 89 [1st Dept 2011]; Buonchristiano v. Fordham University, 146 AD3d 711, [1st Dept 2017]). In Saretsky,” the plaintiff was injured when she fell off a raised walkway in front of the defendant’s building after exiting the co-defendant’s store owner’s shop” (Saretsky at 90). The plaintiff had photos that indicated the platform-like raised walkway ran from the length of the building on Mulberry Street abutting several storefronts (see Saretsky at 90). The plaintiff in Saretsky testified that she didn’t see the five-inch step down to the sidewalk when she fell (see Saretsky at 92). “The affidavit of the plaintiff’s expert engineer stated that the concrete on the sidewalk and the walkway were similar shades of gray. He also noted that although the edge of the walkway was painted with a red line on the surface of the transition riser and upper horizontal edge, the paint in front of the defendant’s store was very worn” (Saretsky at 93). The court interpreted her testimony to be that the steps could not be seen and not that she “was not looking where she was going” (see Saretsky at 92). The court determined that it was undisputed that there were no warning signs, handrails or barricades in the area indicating a change in elevation (see Saretsky at 93). The court opined that “the plaintiff raised a triable issue of fact as to the open and obvious condition of the step” (Saretsky at 93). The plaintiff argues that her facts are similar to the facts in Saretsky and that a triable issue of fact is raised as to the open and obvious condition of the courtyard/walkway and sidewalk. She testified that she approached the courtyard from the “right side” and entered onto the courtyard/walkway where the height differential was negligible. After being asked at deposition if she observed what caused her fall, the plaintiff responded “I couldn’t really see. Because I fell, and it looked like, when you were coming in, the right side is flat. So when you walked up, you really can’t see that the left side is higher. I walked out assuming that the left side was like the right side. Down I went” (See exhibit “D” pg. 42 lines 11-19). The plaintiff also argues that photos annexed to her opposition papers demonstrate that when exiting the courtyard/walkway, the height differential between the courtyard/walkway and the sidewalk is less visible. In support of her motion the plaintiff submits an affidavit from Joel Schachter, a New York State licensed professional engineer. He opined that the defendants negligently maintained the subject premises. He determined that the physical condition and maintenance of the courtyard transition step and the area between the higher end of the transition step and the sidewalk where the plaintiff fell created an optical confusion. This optical confusion prevented the plaintiff from discerning the elevated 6 ½ inch height differential between the higher level of the courtyard and the lower level of the sidewalk. He believes the defendants had a prior fence along the entire length of the front of the courtyard. He said “the prior fencing prevented people from entering and exiting the courtyard where he observed remnants of the metal posts”. He also opines that “removal of the fencing caused and created an optical confusion for pedestrians exiting the courtyard”. “The similar coloring along the entire length of the courtyard and sidewalk pavement, lack of warning signage, lack of demarcation at the edge of the transition step and other visual cues to help someone discern a high drop as they attempted to exit on the “left side”, the higher side of the courtyard”. Mr. Schachter concludes that “the defendants should have installed a new fencing to replace the fencing that was removed prior to the occurrence and should have directed pedestrian traffic to exit the courtyard between the area where the courtyard transition step measured its lowest to approximately a safe three-inch height which would have prevented the occurrence on June 2, 2017″. It is his opinion, within a reasonable degree of engineering and construction safety certainty, that defendants negligently maintained the premises and caused, created, contributed and allowed an optical confusion to exist at its premises. This optical confusion was a proximate cause of the incident on June 2, 2017. “An open and obvious condition only relieves a property owner of its duty to warn, and not the duty to ensure that the premises is maintained in a reasonably safe condition” (America Martinez v. Sandra Contreras, 216 AD3d 532 [1st Dept. 2023];). “There is no bright line test for determining what is open and obvious. “The test is whether ‘any observer reasonably using his or her senses would see’ the condition” (Centeno v. Regine’s Originals, Inc., 5 AD3d 210 [1st Dept 2004] quoting Tagle v. Jakob, 97 NY2d 165 [Ct App 2001];). “The question of whether a condition is open and obvious is generally a jury question, and a court should only determine that a risk was open and obvious as a matter of law when the facts compel such a conclusion” (Westbrook v. WR Activities-Cabrera Markets, 5 AD3d 69 [1st Dept 2004]; Stadler v. Lord and Taylor LLC., 165 AD3d 500 [1st Dept. 2018]). Here, the defendants failed to show that the difference in height between the courtyard/walkway and the sidewalk was open and obvious and not inherently dangerous as a matter of law. There are two competing expert affidavits that result in questions of fact regarding the condition of the transition step and the sidewalk. The photos provided also raise questions as to whether someone using their reasonable senses, walking out of the courtyard/walkway, is able to discern that there is a height differential from the transitory step to the sidewalk. The plaintiff testified that she “could not really see” and that she thought that “the left side was the same height as the right side”. The defendant’s motion is denied as the plaintiff has established that there are triable issues of fact regarding whether or not the courtyard/walkway and sidewalk were an open and obvious risk that was readily observable and not inherently dangerous as a matter of law. Based on the foregoing, it is hereby: ORDERED AND ADJUDGED, that the defendants’ motion for summary judgment is denied, and it is further, ORDERED AND ADJUDGED, that the defendants shall serve a copy of this decision and order upon the plaintiff within twenty (20) days of notice of entry. This constitutes the decision and order of the court. Dated: October 13, 2023
