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Appellate Division Holds Property Owner Who Did Not Create Alleged Sidewalk Defect Entitled To Summary Judgment

In Claro v. 323 Firehouse, LLC, 2019 NY Slip Op 07970 (3d Dept 2019), the Plaintiff allegedly injured her left shoulder when she tripped and fell on a raised concrete sidewalk slab.  At the time of the accident, she was walking towards a diner that was owned by one of the defendants.  In fact, the owner of the diner had repaired and replaced the sidewalk outside of the diner prior to the incident.  In addition to the diner, the Plaintiff also sued a firehouse located next door.

The diner and the firehouse both filed motions for summary judgment.  The Supreme Court of Greene County denied the defendants’ motions, indicating that the defendants failed to meet their summary judgment burdens as there were triable issues of material fact as to their negligence.  The defendants, however, appealed the Supreme Court’s decision.

The New York Appellate Division, Third Department, reversed the Supreme Court’s denial of the firehouse’s motion for summary judgment but affirmed the denial of the diner’s summary judgment motion.  In its decision, the Appellate Division discussed that “landowner(s) have a duty to maintain [their] property in a reasonably safe condition, trivial defects are not actionable.” (Gami v. Cornell Univ., 162 AD3d 1441, 1442 (2018), lv denied 32 NY3d 916 (2019)).  Additionally, New York courts have not established a bright-line rule for how much height differential between sidewalk slabs would render a defect trivial.  Rather, courts look to various factors, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury.” Id. at 1442.

The Appellate Division affirmed the denial of summary judgment as to the diner. Specifically, the Court held that the diner failed to establish that it did not create the alleged dangerous condition when he undertook the repairs to the sidewalk.  As to the firehouse, the Appellate Division reversed the trial court’s denial of summary judgment.  In reversing the lower court, the Appellate Division found that the firehouse had not made any changes to the sidewalk or curb area since purchasing the property in 2004.  Additionally, the firehouse was never notified of the diner’s intent to install the new sidewalk.  The contractor hired by the diner had no contract with the firehouse.  Therefore, the Appellate Division held that the firehouse did not create the alleged defect that caused the Plaintiff’s fall and it was entitled to summary judgment.

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