Recitation, as required by CPLR 2219(a), of the papers considered in review of these motions for summary judgment.

In motion sequence number 003, defendant Pattwin East Realty Corp. (Pattwin) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims asserted as against it.

In motion sequence number 004, defendants YFC International [*2]Trading, Inc. d/b/a 99 Cent Discount Center (YFC) andTai Hun Chiu (Chiu) move, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims asserted as against them.

At her examination before trial (EBT), plaintiff testified that, at the moments immediately preceding her fall, she was looking straight ahead and did not see where she was stepping. Plaintiff EBT, at 31, 78. Plaintiff stated that she did not observe any defective condition that made contact with her foot, and that she did not exactly trip, but that she felt a "kind of lifted up" feeling underneath her right foot and then fell to her knees. Id. at 31-36. Plaintiff also said that she had walked past this area on several prior occasions, but that she never noticed any defects or height differentials in the sidewalk. Id. at 20, 66. In addition, plaintiff never made any complaints about the condition of the sidewalk, nor was she aware of anyone else complaining about this particular area of the sidewalk. Id. at 20-21.

Plaintiff's son allegedly took photographs of the location of the accident approximately two hours after plaintiff's fall. Id. at 22. The photographs appear as Ex. L to the instant motion. Plaintiff identified the area of her fall with an "x." The photographs show some discoloration, or coloration different from the surrounding sidewalk, around a grate near a tree, which is where the "x" appears. Motion, Ex. L.

Plaintiff's son was also deposed in this matter. According to his testimony, he did not witness his mother's fall, but concluded that the discolored portion of the sidewalk was "lifted" and was the cause of his mother's accident. Son's EBT, at 18, 33-34.

Wing Yee (Yee),the owner of Pattwin, testified that Pattwin has owned the premises located at 440 East 14th Street, New York, New York, for the past 15 years. Yee EBT, at 11-13. According to Yee, the building is a one-story commercial building with five commercial tenants. Id. at 11. Yee stated that neither he nor anyone on behalf of Pattwin performed repairs on the public portions of the sidewalk abutting the property located at 440 East 14th Street, New York, New York. Id. at 24-25.

Chiu, both individually and as the owner of S & A Marketing & Advertising (S & A), testified that he had entered into a lease agreement with Pattwin for the subject premises. Chiu EBT, at 38. According to Chiu, S & A dissolved two years ago, prior to the alleged accident, and the lease was assumed by YFC and Chiu. Id. at 12-18. Pursuant to the terms of the lease, YFC owned and operated the 99 Cent Store at 440 East 14th Street. Id. at 34, 86. [*3]

According to the terms of the lease and its rider,

"Tenant shall, throughout the term of this lease, take

good care of the demised premises ... and the sidewalks

adjacent thereto, at its sole cost and expense, make all

non-structural repairs thereto as and when needed to

preserve them in good working condition. [¶ 4 of the lease]

***

Tenant shall indemnify and hold harmless Owner against

and from all liabilities, obligations, damages, penalties,

claims, costs and expenses for which the owner shall not

be reimbursed by insurance, including reasonable attorney's

fees, paid, suffered or incurred as a result of any breach

by Tenant ... of any covenant or condition of this lease,

or the carelessness, negligence or improper conduct of the

Tenant. [¶ 8 of the lease]

***

Whenever there is a conflict between the rider and the

printed portion of the Lease, the rider shall prevail

[¶ 43 of the rider]

***

Tenant here by agrees that Tenant shall and will indemnify

and save harmless Landlord from and against all claims

for damages of whatever nature arising from any accident,

injury or damages whatsoever, caused to any person ...

occurring during the term of this lease in, on or about

the demised premises, unless said claim is due solely to

the Landlord's negligence without Tenant contributing

thereto ... Tenant shall and will upon written demand

repay to Landlord as additional rent, any amount that

landlord may be obligated to pay for any such damages

and the cost and expense. [¶ 49 of the rider]"

Motion, Ex. O.

Chiu testified that he believed that he and the City had the responsibility to maintain the sidewalk in good repair (Chiu EBT, at 44-45), and that, on February 14, 2009, he personally repaired the portion of the sidewalk where plaintiff allegedly fell, after having received a letter from Pattwin directing him to fix the sidewalk. Id. at 46-47, 65. Chiu admitted that he was aware of the uneven nature of the sidewalk in front of his store near the tree, about a one-inch differential in the sidewalk, for several months prior to the date of the accident, and that he and his employees were aware of the condition of the sidewalk in front of his store. Id. at 40-41, 49.

Pattwin argues that, both pursuant to the terms of the lease and Chiu's own testimony, Pattwin is not responsible for the condition of the sidewalk in front of the premises, and that Chiu [*4]and YFC are required to indemnify and reimburse Pattwin for attorney's fees and defense expenses. In addition, Pattwin contends that the complaint must be dismissed both because plaintiff did not see what caused her to fall, because she only conjectures as to the cause of her accident, and because of the trivial nature of the alleged height differential over which plaintiff alleges that she fell.

In support of its motion, Pattwin annexes the affidavit of Jeffrey J. Schwalje (Schwalje), an engineering consultant and managing director of Allied Engineering Laboratories, Inc. Schwalje inspected the sidewalk on August 29, 2010, more than one year after the accident. Based on his inspection, Schwalje opined that the sidewalk was reasonably maintained, free of significant height differentials and that the minor height differential, of approximately one-half inch, did not constitute at tripping hazard.

In opposition, YFC and Chiu argue that the lease does not require them to repair the area of the sidewalk where plaintiff alleges that she fell because such repair is a structural repair, which is Pattwin's obligation under the lease. Further, YFC and Chiu contend that, because such structural repairs are Pattwin's obligation, Pattwin is seeking to be indemnified for its own negligence, which is against public policy.

In reply to YFC's and Chiu's opposition, Pattwin maintains that Chiu admitted that he repaired the portion of the sidewalk in question and that, therefore, the indemnification provisions of the lease apply since Pattwin is seeking indemnification for Chiu's negligence.

In YFC's and Chiu's motion, those defendants argue that the complaint must be dismissed because plaintiff cannot identify the cause of her fall, basically reiterating the arguments posited by Pattwin on this issue.

In partial opposition to YFC's and Chiu's motion, Pattwin states that YFC and Chiu do not address the cross claims for indemnification asserted by Pattwin, those issues only being noted on the notice of motion, and, therefore, YFC and Chiu have failed to meet their burden of making out a prima facie entitlement to summary judgment on Pattwin's cross claims for indemnification.

Plaintiff has submitted one set of opposition papers addressing both motions (motion sequence numbers 003 and 004).

Plaintiff contends that the defendants have failed to meet their burden entitling them to summary judgment. First, plaintiff argues that none of the deposition transcripts attached to the moving motions were signed, thereby rendering them impermissible hearsay.

Second, plaintiff asserts that defendants misinterpret her statements regarding the cause of her fall. Plaintiff maintains that, just because at the time of the accident she did not know the cause of her fall and that, later, she and her son discussed the [*5]matter, does not mean that she fabricated the cause of her accident. Plaintiff states that, in her deposition, she was able to detail where and when she was walking and the "lifted-up" sensation that caused her to fall. Plaintiff asserts that, merely because at the exact moment of the fall she did not know the cause, shortly thereafter she could identify the raised portion of the sidewalk where she was walking with sufficient clarity to, at least, raise a question of fact.

Third, plaintiff avers that the height differential in the sidewalk was not trivial, because Pattwin thought it significant enough to write to Chiu to have it repaired several months before her accident, and Chiu had been aware of the condition of the sidewalk long before the repair was attempted.

Fourth, plaintiff contends that Schwalje's affidavit is of no value since it was based on an inspection made more than one year after the accident and fails to take into account that Chiu allegedly made a subsequent additional repair, at an unspecified time, to the defective portion of the sidewalk. Chiu EBT, at 55.

Lastly, plaintiff argues that Pattwin cannot contract away its responsibility to maintain the sidewalk in front of its property when it has actual notice of an unsafe condition, which, plaintiff asserts, exists in the case at bar wherein Pattwin requested Chiu to repair the sidewalk after seeing its condition.

In reply to plaintiff's opposition, Pattwin states that signed copies of the deposition transcripts were not returned to it within the 60-day period set forth in CPLR 3116, and that, therefore, it is entitled to use such transcripts for the purposes of a summary judgment motion.

Further, Pattwin states that plaintiff is only speculating as to the cause of her accident after she was shown photographs of the area and encouraged by her son.

In reply to plaintiff's opposition, YFC and Chiu argue that plaintiff's statements regarding the cause of her accident are pure speculation and, consequently, are insufficient to defeat their motion for summary judgment. Further, YFC and Chiu include a copy of a letter to plaintiff and her son requesting them to sign the deposition transcripts sent more than 60 days prior to filing the summary judgment motion.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted]." Santiago v Filstein, 35 AD3d 184, 185-186 (1st Dept 2006). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006); see Zuckerman v City of New York, 49 [*6]NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).

The court does not agree with plaintiff's argument that the use of the unsigned depositions is legally insufficient as support for defendants' summary judgment motions.

Evidence has been submitted that the deposition testimony of plaintiff and her son were sent to plaintiff's lawyer more than 60 days prior to filing the instant motions. CPLR 3116 (a) states:

"If the witness fails to sign and return the deposition

within sixty days, it may be used as fully as though

signed."

Therefore, since 60 days had elapsed between sending copies of the deposition transcripts to plaintiff and her son and the filing the instant motions, and plaintiff and her son failed either to sign or to return corrected copies of the transcripts, such deposition testimony may be used as support for defendants' motions for summary judgment.

Further, since the other unsigned deposition transcripts are those of the moving parties, they are deemed adopted as accurate by the movants. Ashif v Wan Ok Lee, 57 AD3d 700 (2d Dept 2008).

However, the court does agree with plaintiff's argument that no probative weight can be given to the affidavit of Pattwin's expert. Since Schwalje only viewed the area of the accident one year after the occurrence, and there is some evidence that subsequent repairs were made to that area, the affidavit can only contain speculative and conclusory assertions as to the alleged defect in the street, and, therefore, cannot support the motions for summary judgment. Haynes v Estate of Goldman, 62 AD3d 519 (1st Dept 2009)(affidavit of expert who viewed the area 16 months after the accident insufficient to raise a triable issue of fact); Amaya v Denihan Ownership Co., LLC, 30 ADd3d 327 (1st Dept 2006)(affidavit of expert who viewed the area 3½ years after the accident without probative value).

That portion of defendants' motions seeking to dismiss the complaint is denied.

To prove a prima facie case of negligence in a slip-and-fall case, a plaintiff is required to show that the defendant either created the condition which caused the accident or that the defendant had actual or constructive notice of the condition.

Gregg v Key Food Supermarket, 50 AD3d 1093, 1093 (2d Dept 2008). Liability may be imposed where the landowner or lessee creates a dangerous condition on the property. Warren v Wilmorite, Inc., 211 AD2d 904, 905 (3d Dept 1995). "To be entitled to judgment as a matter of law, [a defendant] must demonstrate that the plaintiff failed to make out a prima facie case; [i.e.,] the plaintiff's evidence must be accepted as true, and the plaintiff must be given the benefit of every favorable inference which can be reasonably [*7]drawn from the evidence [citation omitted]." Posner v New York City Transit Authority, 27 AD3d 542 (2d Dept 2006).

In the case at bar, there is sufficient, uncontradicted evidence that Pattwin, YFC and Chiu were all aware of the defect in the street, and that Chiu attempted to repair the defect, on Pattwin's instructions, approximately three months prior to the date of the accident. Defendants' primary argument against asserting liability against them is that, at the time of the accident, plaintiff was unable to state what caused her to fall. As a secondary argument, defendants contend that, even if the repair made by Chiu at Pattwin's instructions was the cause of plaintiff's accident, the alleged defect was too trivial to render them liable for plaintiff's injuries.

Although defendants cite numerous cases in which summary judgment was granted because the plaintiff was unable to identify the cause of the accident (Tomaino v 209 East 84th Street Corp., 72 AD3d 460 [1st Dept 2010]; Morgan v Windham Realty, LLC, 68 AD3d 828 [2d Dept 2009]; Taub v Art Students League of New York, 39 AD3d 259 [1st Dept 2007]; Teplitskaya v 3096 Owners Corp., 289 AD2d 477 [2d Dept 2001]), the instant matter is distinguishable from those cases, because plaintiff clearly stated that she felt a lifted-up feeling under her foot immediately prior to her falling to the ground, and she later identified the area of the street where she fell as the area in which the aforementioned repair was made.

To rebut a motion for summary judgment, where the plaintiff's case is based on circumstantial evidence, the

"[p]laintiff[] need not positively exclude every other

possible cause of the accident. Rather, the proof must

render those other causes sufficiently remote' or

technical' tp enable the jury to reach its verdict

based not upon speculation, but upon the logical

inferences to be drawn from the evidence."

Gayle v City of New York, 92 NY2d 936, 937 (1998); Schneider v Kings Highway Hospital Center, 67 NY2d 743 (1986); Holliday v Hudson Armored Car & Courier Service, Inc., 301 AD2d 392 (1st Dept 2003)(plaintiff must demonstrate facts and conditions from which defendants' negligence and the cause of the accident may be reasonably inferred).

Furthermore, the fact that plaintiff discussed the accident with her son subsequent to her injury is not relevant to the court's inquiry in this matter.

"The court's function on a motion for summary judgment

is not to resolve issues of fact or to determine matters

of credibility, but merely to determine whether such

issues exist."

Roth v Barreto, 289 AD2d 557, 558 (2d Dept 2001).

In the case at bar, a question of fact exists as to whether [*8]the repair made by Chiu at Pattwin's direction was the cause of plaintiff's accident.

Moreover, with respect to defendants' argument that any alleged defect was too trivial to render them liable for plaintiff's injuries,

"[w]hether a sidewalk defect is sufficiently hazardous

to impose liability is generally a question for a jury

to resolve on the particular facts of each case. There

is no minimal dimension test' or per se rule that a

defect must be a certain minimum height or depth in

order to be actionable. While defendants emphasize

that plaintiff was unable to state with certainty what

had caught her shoe and thus what caused her to fall, that,

coupled with other relevant circumstances, to wit, inter alia, the length, width, and depth of the tripping hazard,

was sufficient to raise an issue of fact precluding the

grant of summary judgment [internal quotation marks and citations omitted]."

Therefore, based on the foregoing, those portions of defendants' motions seeking to dismiss the complaint are denied.

Those portions of defendants' motions seeking summary judgment dismissing the cross claims regarding indemnification are also denied.

At present, factual questions exist as to whether the repair to the street was the cause of plaintiff's accident, and, if so, whether YFC and Chiu are responsible, as the tenants who made the repair, or whether Pattwin, as the owner of the property is responsible, regardless of the lease, because of Pattwin's inspection of the area and directions to Chiu to make the repair.

"Since it has not been determined whether [either

defendant] was negligent, an award of summary judgment

on the contractual indemnification cross claim would

be premature."

Martinez v City of New York, 73 AD3d 993, 999 (2d Dept 2010).

Based on the foregoing, it is hereby

ORDERED that defendant Pattwin East Realty Corp.'s motion for summary judgment (motion sequence number 003) is denied; and it is further

ORDERED that defendants YFC International Trading, Inc. d/b/a 99 Cent Discount Center's andTai Hun Chiu's motion for summary judgment (motion sequence number 004) is denied.

Dated: February 17, 2011

ENTER: [*9]

_____________________________

Joan M. Kenney, J.S.C.