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Tzul v. United States

United States District Court, E.D. New York

September 24, 2014




On February 17, 2012, Plaintiffs Evelyn Tzul ("Evelyn") and Edgar Tzul ("Edgar") (collectively, "Plaintiffs") filed their Complaint against Defendant United States of America ("Defendant"). (See Compl. (Dkt. 1).) They assert claims pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 ("FTCA"), for personal injuries Evelyn sustained on September 8, 2010, when she tripped and fell on the public sidewalk abutting the United States Post Office at 419 McDonald Avenue in Brooklyn, New York. (See Compl. ¶ 12.) Following discovery, on January 23, 2014, Defendant moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Mot. for Summ. J. (Dkt. 24).) Plaintiffs opposed Defendant's motion. (Pls.' Opp'n (Dkt. 21).) The court referred the motion to Magistrate Judge Joan M. Azrack for a Report and Recommendation ("R&R") pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b)(1). (Apr. 10, 2014, Order (Dkt. 31).)

On August 14, 2014, Judge Azrack issued an R&R recommending that Defendant's motion be granted. (R&R (Dkt. 32).) Plaintiffs submitted an objection on August 26, 2014. (Pls.' Obj. (Dkt. 33).) Plaintiffs objected to Judge Azrack's determination that the crack in the sidewalk on which Evelyn allegedly tripped was too trivial as a matter of law to constitute a defective or dangerous condition under relevant law; specifically, Plaintiffs argued that Judge Azrack had erroneously "focuse[d] exclusively on the height differential of the subject crack." (See id. at 1.)[1] No other objections to the R&R were filed. For the reasons explained below, Judge Azrack's R&R is ADOPTED IN FULL.


The factual background to this case is set forth in greater detail in Judge Azrack's R&R. (See R&R at 2-4.) The facts pertinent to this Memorandum and Order are as follows:

On the morning of September 8, 2010, Plaintiffs were walking with their two children on a public sidewalk abutting the post office located at 419 McDonald Avenue in Brooklyn, New York. ( Id. at 2.) Evelyn was walking two feet behind Edgar and the children. (Id.) Evelyn, who was wearing sneakers with a two-inch sole, was walking slowly and was looking straight ahead, not down at the sidewalk. (Id.) She "hit something" and tripped and fell; after she fell, she identified a crack in the sidewalk as the object she had hit. (Id.) She was in pain and unable to walk. ( Id. at 3.) Edgar called an ambulance, which drove Evelyn to the hospital; when Evelyn arrived, doctors diagnosed her with a broken foot. (Id.)

Within a few weeks of the incident, in September 2010, Plaintiffs had a private investigator take photographs of the area of the sidewalk where Evelyn fell. (Id.; see Merchant Decl., Ex. G (Dkt. 25-7).) On April 6, 2013, Plaintiffs had another set of photographs taken. (R&R at 3; see Vilensky Decl., Ex. D (Dkt. 21-6).) Both sets of photographs show a crack in the sidewalk; in Judge Azrack's view, the crack appears slightly larger in height in the photographs taken in April 2013 than in the set taken in September 2010. (R&R at 3; compare Merchant Decl., Ex. G, with Vilensky Decl., Ex. D.)

The United States Postal Service Acting Manager of Safety for the Triboro District, Michelle Dredger ("Dredger"), measured the crack at issue on January 25, 2013. (R&R at 3.) She measured the height differential to be slightly less than one inch at its highest point; however, Plaintiffs point to the photographs they had taken in April 2013 in support of the contention that the actual height differential was slightly greater than one inch. ( Id. at 3-4.) They argue that when Dredger measured the crack in January 2013, there was no grass growing in the crack; however, on both the date of Evelyn's injury and April 6, 2013, grass was contained in the crack, increasing the height differential as compared to Dredger's measurements. ( Id. at 4.) Like Judge Azrack, the court adopts Plaintiffs' allegations concerning the height of the crack differential, as the non-moving parties on a motion for summary judgment. (See id. at 4 n.3, 8); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000) ("[T]he court must draw all reasonable inferences in favor of the nonmoving party.").

On the day of Evelyn's fall, there were "a lot of people" on the sidewalk, "walking their kids back and forth." (R&R at 4 (quoting Merchant Decl., Ex. C (Dkt. 25-3) at 36:8-12) (internal quotation marks omitted); see also Def.'s Reply 56.1 Statement (Dkt. 28) ¶ 11.) It was sunny (R&R at 10; Merchant Decl., Ex. D (Dkt. 25-4) at 31; Def.'s Reply 56.1 Statement ¶ 14), and nothing was obstructing Evelyn's view of the crack or the sidewalk generally (Merchant Decl., Ex. F (Dkt. 25-6) at 45-47; Def.'s Reply 56.1 Statement ¶ 14).


When a district court receives timely objections to a magistrate judge's R&R, the court makes "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. [The district court] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). To obtain this de novo review, an objecting party or parties "must point out the specific portions of the report and recommendation to which they object." U.S. Flour Corp. v. Certified Bakery, Inc., No. 10-CV-2522 (JS) (WDW), 2012 WL 728227, at *2 (E.D.N.Y. Mar. 6, 2012); see also Fed.R.Civ.P. 72(b)(2) ("[A] party may serve and file specific written objections to the [R&R]."). Portions of the R&R to which a party makes no objection are reviewed for clear error. U.S. Flour Corp., 2012 WL 728227, at *2.


A. Summary Judgment Standard

To the extent de novo review is required, summary judgment is proper if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is material if its existence or nonexistence "might affect the outcome of the suit under the governing law, " and an issue of fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The ...

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