This decision has been referenced in a table in the New York Supplement.
Fillmore K. Peltz, Esq. by Fillmore K. Peltz, Esq., Massapequa, for Plaintiff.
Morris Duffy Alonso & Faley by Jeoungson Kim, Esq., of Counsel, New York, for Defendants.
MANUEL J. MENDEZ, J.
Upon a reading of the foregoing cited papers, it is ordered that this motion for summary judgment is granted, the complaint is dismissed.
In this action to recover for personal injuries as a result of plaintiff's slip and fall on a wet sidewalk in front of defendants' premises, defendants move for summary judgment alleging that the sidewalk is not inherently dangerous, that they did not create a dangerous condition or had actual or constructive notice of a dangerous or defective condition.
Defendants' moving papers contain a copy of plaintiff's deposition, copies of the depositions of Gordana Peric and Viktor Dembitskyi— employees of defendant Pasticceria Bruno— a copy of the deposition of Marisa Bonet— on behalf of defendants building owners— copies of photographs where according to plaintiff the accident occurred, and an affidavit from its expert engineer Anthony Mellusi.
Plaintiff testified that on October 24, 2009 he entered a bakery at the premises operated by defendant Pasticceria Bruno of Greenwich Village (hereinafter " Pasticceria Bruno" ) located at 506 Laguardia Place in Greenwich Village, which building is owned by defendants LouMarita Realty Corporation a/k/a Lou Maria Realty Corp. (hereinafter " Lou Maria" ), to purchase a loaf of bread. It was approximately 8 P.M. and it was raining heavily. When plaintiff exited the premises, after he had walked a few feet, he suddenly slipped and fell to his left— striking his head with a metal railing, placed there for a sidewalk café — sustaining injuries. Plaintiff stated he " stepped onto an extremely slippery piece of rock or concrete off a very much coarser piece of pavement or surface and [his] feet came out from underneath [him] so fast he had no chance to react.." " The surface was very shiny and firm." [see Transcript Pg. 20 Line 16-22 and Pg. 22 Line 21-23].
Gordana Peric, Pasticceria's manager at the time and Viktor Dembitskyi, an employee, heard a loud noise outside. They proceeded outside to see what was happening and noticed plaintiff on the floor, in an awkward position, with the items he was carrying in approximately six bags thrown on the sidewalk. They helped plaintiff get up from the floor, collected his belongings and brought him into the bakery. They both stated that it was raining at the time of the accident and that there were no defects on the sidewalk where plaintiff fell.
Marisa Bonet a witness produced by Lou Maria, the property owner and manager stated that a portion of the sidewalk is made of granite, that it had not been repaired prior to plaintiff's fall or since. Photographs of the sidewalk, taken by plaintiff two or three days post accident, show no visible defect in the area plaintiff fell. [see photographs Exhibit D]. They show that the sidewalk is composed of masonry, followed by a cement strand or patch which unites the masonry with granite. Plaintiff fell on the granite portion of the sidewalk.
Defendants' expert engineer Anthony Mellusi inspected the area, found the surface where the accident occurred to be natural in finish and texture, found the cement strand or patch to be without defect with no evidence of a tripping hazard and noted no tripping hazards or defects in an area surrounding a 6 foot radius of the accident location. He tested the slip resistance of the walkway surfaces at various locations with results ranging from .58-.60 which is safe and in line with the accepted industry standards.
Defendants now move for summary judgment dismissing the complaint on the grounds the sidewalk is not inherently dangerous, that it has not been established that they created a dangerous condition or had any actual or constructive notice of a dangerous condition. Defendants allege that plaintiff's claims are without merit and present no triable issue of fact for a jury to decide.
Plaintiff opposes the motion and argues that defendants have failed to make out a prima facie case entitling them to judgment as a matter of law. Plaintiff also argues that there exists an issue of fact as to whether defendants neglected to maintain their property in a reasonably safe condition or exercised reasonable care to avoid creating a hazardous condition. Plaintiff claims that the concrete strand or patch in and of itself is a sidewalk defect precluding summary judgment.
In opposition to the motion plaintiff submits the affidavit of its expert engineer, Herbert W. Braunstein, P.E., P.A., who on October 18 and 19, 2011-two years after the accident— performed an inspection of the sidewalk and a slip resistance test. He found the non-porous granite surface to be .37 when the surface is wet from rain, the maximum allowable co-efficient ...