SCHW. v. BLEU EVOL. BAR REST. CORP., 117377/2006 (4-11-2011)

HON. SALIANN SCARPULLA, J.:

Papers considered in review of this motion for summary judgment:

Notice of Motion.............1 Aff in Opp...................2 Reply........................3

In this action to recover damages for personal injuries, defendants Bleu Evolution Bar Restaurant Corp. s/h/a Bleu Evolution Bar Restaurant Corp. and 593 Fort Washington L.L.C. ("Bleu Evolution") move for summary judgment dismissing the complaint.

On September 28, 2006, plaintiff Julia Schwartz ("Schwartz") tripped and fell on the sidewalk outside of Bleu Evolution Bar Restaurant located at 808 West 187th Street. She commenced this action by summons and complaint dated November 16, 2006, seeking to recover damages for the injuries she sustained as a result of her fall. She alleged that Bleu Evolution was negligent and violated Administrative Code 7-210.

Bleu Evolution now moves for summary judgment dismissing the complaint, arguing that (1) it did not breach any duty owed under Administrative Code 7-210 because the accident did not occur on the sidewalk adjacent to property it owned; (2) any defect that existed was trivial and not actionable; and (3) it did not create or have notice of any defect.

In support of its motion, Bleu Evolution refers to the examination before trial testimony of the managing agent for the subject building Stanley Vickers ("Vickers"), Bleu Evolution Restaurant's manager Julio Gonzalez ("Gonzalez"), and Schwartz.

Schwartz testified that the accident occurred on the sidewalk "right to the side of the Bleu Evolution Restaurant. At the very end of it." She explained that she fell when her left foot became caught on an overhang between flagstones. She identified the location of her fall on photographs.

Upon examination of those photographs, Vickers testified that Schwartz's accident did not occur on the sidewalk adjacent to Bleu Evolution's property. Rather, her fall occurred on the sidewalk adjacent to the cleaners located next door to Bleu Evolution. He explained that Bleu Evolution's leasehold ended to the left of the defect marked by Schwartz. Vickers further testified that he was unaware of any repairs undertaken by the building owner or managing agent to the sidewalk at any time or requests by the tenant for such repairs. He also indicated that his office never received any complaints about the sidewalk prior to the accident and was not aware of any prior accidents in the location.

Gonzalez testified that he never noticed an unsafe condition on the sidewalk outside of the restaurant, never received any complaints about the sidewalk, and was not aware of any prior accidents in the location. He further explained that the property line between the restaurant and the cleaners next door was demarcated by the gap between the two buildings. He estimated the gap to be an inch wide.

In opposition, Schwartz argues that issues of fact exist as to whether she tripped and fell on the sidewalk adjacent to property owned by Bleu Evolution. Specifically, Schwartz maintains that no evidence or expert testimony has been presented to establish the property line and/or boundaries between Bleu Evolution and the cleaners located next door. Schwartz further argues that issues of fact exist as to whether the defect upon which Schwartz tripped and fell was trivial, and whether Bleu Evolution had constructive notice of the defect.

Discussion

A movant seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Once a showing has been made, the burden shifts to the opposing party who must then demonstrate the existence of a triable issue of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).

Here, Bleu Evolution argues that the accident did not occur on the sidewalk adjacent to its property, rather, it occurred on the sidewalk adjacent to the cleaners' property next door. However, Bleu Evolution has failed to meet its burden of establishing entitlement to judgment as a matter of law as it has submitted no expert testimony or other evidence to establish the property line and boundaries between Bleu Evolution and the cleaners located next door. No basis has been offered for Vickers' and Gonzalez's opinions that the sidewalk upon which Schwartz tripped and fell was adjacent to property not owned by Bleu Evolution.

Further, generally the issue of whether a dangerous or defective condition exists or whether a defect is too trivial to be actionable depends on the particular facts of each case and is properly a question of fact for the jury. See Trincere v. County of Suffolk, 90 N.Y.2d 976 (1997). Here, no expert or other evidence has been presented by any party to explain the nature of the defect, specifically, its characteristics or dimensions. Therefore, issues of fact as to whether the defect was trivial in nature and whether Bleu Evolution had constructive notice of the defect remain for the jury to resolve. See generally Jacobsen v. Krumholz, 41 A.D.3d 128 (1st Dept. 2007).

In accordance with the foregoing, it is

ORDERED that the motion for summary judgment by defendants Bleu Evolution Bar Restaurant Corp. s/h/a Bleu Evolution Bar Restaurant Corp. and 593 Fort Washington L.L.C. is denied.

This constitutes the decision and order of the Court.