Upon the foregoing papers, it is ordered that motion sequence 004 and 005 are consolidated for joint disposition and are decided as indicated below.

Plaintiffs Delayne Gold and Laurence Gold bring this negligence action to recover damages for personal injuries allegedly sustained by plaintiff Delayne Gold as a result of a trip and fall at 4th Avenue, between 8th and 9th Streets, at Astor Place, New York, located on the triangular traffic island. Plaintiff Laurence Gold, plaintiff Delayne Gold's spouse, has a derivative cause of action.

Defendant JLJ IV Enterprises, Inc. (JLJ) now moves for summary judgment, dismissing the complaint, pursuant to CPLR 3212 (motion seq. 004), which is unopposed. Defendant City of New York (The City) now moves for an order: (1) granting summary judgment, pursuant to CPLR 3212, dismissing the complaint and all cross-claims; (2) permitting The City to enter judgment, with the Clerk of the Court, against plaintiffs for statutory costs and disbursements; and (3) directing plaintiffs to furnish $500.00 in security for costs pursuant to CPLR 8501(a), 8502, and 8503. Defendant Vincent Rusciano Construction Co. (Rusciano Construction) cross-moves for summary judgment as to all claims and cross claims, and/or to dismiss plaintiffs' complaint in its entirety as against it ^[FN1]. Motion seq. 005 consists of The City's motion and defendant Rusciano Construction's cross-motion. Plaintiffs oppose only The City's motion.

Here, defendant JLJ has established entitlement to summary judgment as a matter of law. Defendant JLJ argues that it did not cause, create, and is not otherwise responsible for the Accident. In support of its motion, defendant JLJ proffers the deposition transcripts of both plaintiffs, and of Paul Broncati, a professional engineer and the Superintendent of defendant JLJ, at the time of the Accident. According to Mr. Broncati's deposition transcript, defendant JLJ did not perform any work, and did not store any equipment, on the sidewalk where the Accident occurred. Moreover, plaintiffs concede that there was no construction in the triangular traffic island where plaintiff Delayne Gold fell. Significantly, plaintiff Delayne Gold testified that on the date of the Accident, she did not notice any construction in the triangle area where she fell. See Michell Affirmation, Exh. C, Delayne Gold transcript, at 134, line 15-19. Similarly, plaintiff Laurence Gold testified that there was no construction where plaintiff Delayne Gold fell at the time of the Accident. See Michell Affirmation, Exh. C, Laurence Gold transcript, at 12, line 7-11. As it is undisputed that defendant JLJ did not perform any work on the sidewalk where plaintiff Delayne Gold fell, and that defendant JLJ did not create the condition which caused the Accident, defendant JLJ's unopposed motion for summary judgment is granted, and the complaint is dismissed as to defendant JLJ.

Motion Seq. 005

Defendant Rusciano Construction's Cross-Motion for Summary Judgment

Defendant Rusciano Construction, similar to defendant JLJ, has also established entitlement to summary judgment as a matter of law. Defendant Rusciano Construction argues that it did not own, install, maintain, or repair the sidewalk on which the Accident occurred. In support of its motion, defendant Rusciano Construction proffers the deposition transcripts of plaintiff Delayne Gold and of Peter Rusciano, an employee of defendant Rusciano Construction, as well as Mr. Rusciano's affidavit.

As previously discussed, both plaintiffs concede that, at the time of the Accident, no construction took place in the area where plaintiff Delayne Gold fell. Moreover, according to Mr. Rusciano's deposition transcript, defendant Rusciano Construction did not perform any work [*3]on the sidewalk where the Accident occurred. This has not been refuted. As such, it is undisputed that defendant Rusciano Construction did not create the condition which caused the Accident, and, thus, defendant Rusciano Construction's motion for summary judgment, which is unopposed, is granted, and the complaint is dismissed as against it.

Defendant The City's Motion for Summary Judgment

Preliminarily, The City argues that the complaint must be dismissed since plaintiffs failed to plead prior written notice. In opposition, plaintiffs correctly contendthat Administrative Code §7-201(c)(2) does not specifically indicate that the word "written" be pled, but, rather, to be able to maintain an action against The City, The City has to have been given prior written notice of the alleged defect which caused the Accident. Here, plaintiffs Verified Complaint includes an allegation that The City was given prior notice of the allegedly defective condition which was the cause of plaintiff Delayne Gold's accident. However, as detailed below, there are factual issues as to whether The City received prior written notice of the alleged defect, which will need to be determined at the trial of this case.

Plaintiffs also argue, in the alternative, that prior written notice was pled, given that proper and timely notice was referenced in their Notice of Claim; further, plaintiffs' Verified Bill of Particulars refers to actual and constructive notice, and the Verified Complaint includes a claim of prior notice. Verified Complaint, ¶ 28.^[FN2] Moreover, even if prior written notice was not specifically pled, it is uncontested that The City had knowledge of plaintiffs' allegation of prior written notice, as plaintiffs supplied The City with a copy of the Big Apple Map during the course of discovery; thus, The City has not been prejudiced in any way. In fact, as The City has argued vehemently, with supporting expert proof, that the written notice relied upon by plaintiffs is inadequate in its motion for summary judgment of dismissal, there can be no claim of surprise or prejudice. Further, even if not pled, it is well settled that leave to amend a complaint may be made at any time, even during or after trial, to conform to the proof admitted into evidence, and is generally freely granted, absent prejudice and surprise resulting from the delay. See Gonfiantini v Zino, 184 AD2d 368 (1st Dep't 1992); Murray v City of New York, 43 NY2d 400 (1977); Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 (1983); Antwerpse Diamantbank N.V. v Nissel, 27 AD3d 207, 208 (1st Dep't 2006). In fact, CPLR 3025(c) specifically provides: "Amendment to conform to the evidence. The court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just...". Thus, dismissal on the basis that plaintiffs failed to plead prior written notice is denied.

In addition, The City argues that it did not have prior written notice of the alleged sidewalk condition which caused the Accident and plaintiff Delayne Gold's injuries, thus, plaintiffs' complaint should be dismissed as against it. The City further argues that the alleged defect is trivial and does not constitute a dangerous or defective condition. In support, The City proffers, inter alia, a copy of the Summons and Complaint, the deposition transcript of Cynthia [*4]Howard, a record searcher employed by The City, and a copy of the map prepared by the Big Apple Pothole and Sidewalk Protection Committee, Inc.,Volume 3, page 24, dated October 23, 2003 (Big Apple Map). It is uncontested that the Big Apple Map was filed with the Department of Transportation. The City further provides an affidavit of Ralph Gentles, a manager and surveyor for Sanborn Map Company, and the affidavit of Stan A. Pitera, a licensed professional engineer of Affiliated Engineering Laboratories, Inc. Specifically, The City, relying on Mr. Pitera's affidavit, contends that the Big Apple Map does not depict the location of plaintiff Delayne Gold's fall. According to Mr. Pitera's affidavit, the Big Apple Map depicts only the lower 76 feet of the triangular traffic island on which the Accident occurred, and did not include the defect which allegedly caused the Accident.

In opposition, plaintiffs argue that The City did, in fact, have notice of the defect which caused plaintiff Delayne Gold's injuries. Further, plaintiffs argue that the affidavit of The City's expert, Mr. Pitera, should not be considered as such expert was not disclosed during discovery, and was only disclosed after the filing of the note of issue. Alternatively, plaintiffs contend that even if Mr. Pitera's affidavit is considered, it shows that The City had prior written notice of the alleged defect through the Big Apple Map. Additionally, plaintiffs proffer, inter alia, the affidavit of its expert, Herb W. Braunstein, a professional engineer licensed in the State of New York. The court notes that, as it is uncontested that discovery continued after the filing of the note of issue, and no party was prejudiced by the post note of issue exchange of experts, specifically in light of the fact that both The City and plaintiffs have retained experts to support their respective positions, the court considered the affidavits of both experts. Moreover, the court notes that plaintiffs do not even allege prejudice by The City's notice of expert.

Applying the above well settled principles for summary judgment to this case, The City's motion is denied as it has not established entitlement to judgment as a matter of law. Generally, a municipality owes a duty to keep public sidewalks in a reasonably safe condition. See D'Ambrosio v City of New York, 55 NY2d 454, 462 (1982). A failure to repair a defective condition, of which it has notice, either actual or constructive, will place liability with The City for damages to any person injured thereby. See id. However, the requirement, pursuant to Administrative Code § 7-201(c)(2), for prior written notice is a condition precedent that is strictly construed; failure to provide such notice bars a claim against The City. See Poirier v City of Schenectady, 85 NY2d 310, 313-314 (1995). Here, while both disagree as to the reading of the specific Big Apple Map applicable herein, both The City and plaintiffs concede that, as a general principle, defects contained in the Big Apple Map constitute prior written notice to The City. See Katz v City of New York, 87 NY2d 241, 243 (1995).

At plaintiff Delayne Gold's deposition, she testified that she was walking north on the triangular traffic island, on 4th Avenue, from 8th Street towards 9th Street, and that she was walking approximately 70 to 80 feet before she fell. See Hahn Affidavit, Exh. K, Delayne Gold transcript, at 30, line 4 - at 31, line 24. At her deposition, plaintiff Delayne Gold also marked the location of the Accident on several pictures. In forming their expert opinions, both The City and plaintiffs' experts reviewed this information, along with other documents and visited the Accident location. However, The City's expert opined that the location of the Accident as described by plaintiff Delayne Gold does not fall within the Big Apple Map, while plaintiffs' expert opined that such location does fall within the Big Apple Map. Specifically, Mr. Pitera's [*5]affidavit states that "the defects shown on the [Big Apple] Map fall within the lower 76 feet of the subject traffic island. The defects on the [Big Apple] Map do not include the defect that allegedly caused the plaintiff's accident."Hahn Affirmation, Exh. R, Pitera Affidavit, ¶ 4. According to Mr. Pitera's affidavit, the Accident occurred 91 feet from the south end of the traffic island. See id. at ¶ 3. Mr. Pitera further states that "it is [his] opinion within a reasonable degree of engineering certainty, that the location of plaintiff [Delayne Gold's] accident is not contained within the Big Apple Map." Id. at ¶ 6. In contrast, while Mr. Braunstein's affidavit does not state the specific location of the Accident in feet, he does state that "[t]he sidewalk area on the Big Apple Map which indicates the existence of extended section of cracked sidewalk,' extended section of raised or uneven sidewalk,' and obstruction protruding from sidewalk' corresponds to the area of sidewalk where plaintiff [Delayne Gold] identified she was caused to trip and fall." Bickoff Affirmation in Opposition, Exh. B, Braunstein Affidavit, ¶ 10. Mr. Braunstein further states that "it is [his] opinion with a reasonable degree of engineering certainty, that the extended section of cracked, uneven, and defective sidewalk where plaintiff [Delayne Gold's] accident occurred is contained on the Big Apple Map." Id. at ¶ 11.

As such, there is a triable issue of fact as to whether The City had prior written notice of the alleged defect which caused the Accident. See Patane v City of New York, 284 AD2d 513, 514 (2d Dep't 2001). The evidence submitted herein did not establish as a matter of law that The City did not receive notice of the alleged defect that caused plaintiff Delayne Gold to fall. The description of the defect provided by the Big Apple Map may in fact correspond to the defect at issue; however, such is a question of fact to be resolved by a jury. See Almadotter v City of New York, 789 NYS2d 729, 730 (2d Dep't 2005). Thus, The City's motion for summary judgment must be denied.

The City further argues that the alleged defect is too trivial to be actionable. "[T]he issue of whether a dangerous or defective condition exists depends on the peculiar facts and circumstances of each case". Guerrieri v Summa, 193 AD2d 647, 647 (2d Dept 1993) (internal quotations omitted). "In determining whether a defect is trivial, the court must examine all of the facts presented including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury". Ryan v KRT Property Holdings LLC, 45 AD3d 663, 665 (2d Dep't 2007) (internal quotations omitted). Generally, the issue of whether a dangerous or defective condition exists is a question for the jury. See Trincere v County of Suffolk, 90 NY2d 976 (1997). Moreover, "[t]here is no longer any requirement that a defective condition in a sidewalk be of any certain size before it can give rise to liability." Schechtman v Lappin, 161 AD2d 118, 121 (1st Dep't 1990).

Applying the above principles here, upon the submitted papers, there is an issue of fact as to whether the alleged defect in the sidewalk is trivial. The City proffers Mr. Pitera's affidavit in support. According to The City, the alleged defect is 15/16 inches deep. However, in opposition, Mr. Braustein's affidavit states that the broken sidewalk causing plaintiff Delayne Gold's fall has a 1.5 - 3 inch vertical displacement, which Mr. Braunstein opined is a trip hazard. At this stage, given the conflicting expert opinions, summary judgment cannot be granted in this action.

As triable issues of fact exists precluding summary judgment for The City, this court need not address the remainder of the arguments. [*6]

The City also argues that plaintiffs must furnish $500.00 in security for costs, pursuant to CPLR 8501(a), 8502, and 8503, on the ground that plaintiffs are non-residents of the State of New York. CPLR 8501(a) states that "[e]xcept where the plaintiff has been granted permission to proceed as a poor person or is the petitioner in a habeas corpus proceeding, upon motion...the court or a judge thereof shall order security for costs to be given by the plaintiffs where none of them is...a resident of the state when the motion is made." While "resident" is not defined by the statute, the purpose for which such statute applies is to assure that defendants may be able to recover their costs without difficulty. See G.C.S. Co. v Aresco, Inc., 443 NYS2d 358, 358-359 (Sup. Ct., Nassau Cty 1981) , aff'd. 88 AD2d 611, 612 (2d Dep't 1982).

The court notes that, here, plaintiffs both testified that they maintain a residence in Manhattan, New York, which they have owned for 52 years, and in which they reside approximately three (3) months out of each year. Plaintiffs' long-term maintenance of a residence in Manhattan for 52 years, their continued three month residency in New York (albeit not year long), and their ownership of assets within the State, which are undisputed by The City, evidence a "degree of permanency [and] continuity to [plaintiffs' 52 year] residence in New York City". Cf Harshbarger v Sherron Metallic Corp., 179 Misc 1037, 1039 (Sup. Ct., Queens Cty 1943); cf Parker v City of New York, 100 NYS2d 17, 18 (Sup. Ct., New York Cty 1950) aff'd 278 AD 637, 637 (1st Dep't 1951). Notwithstanding that The City maintains that plaintiffs do not qualify for residency under such facts, The City has failed to provide any case law or evidence supporting its contention that plaintiffs are, indeed, non-residents, and, thus, such relief is denied.

Accordingly, it is

ORDERED that defendant JLJ's motion for summary judgment against plaintiffs is granted in its entirety; and it is further

ORDERED that defendant Rusciano Construction's cross-motion for summary judgment against plaintiffs is granted in its entirety; and it is further

ORDERED that upon proof of service of a copy of this order with notice of entry upon all parties, the Clerk of this Court is directed to enter judgment dismissing the complaint in its entirety and any cross-claims as against defendants JLJ and Rusciano Construction only, with costs and disbursements; and it is further

ORDERED that defendant The City's motion for summary judgment is denied in its entirety; and it is further

ORDERED that within 30 days of entry of this order, plaintiffs shall serve a copy of this order with notice of entry upon all parties, as well the Clerk of the Court; and it is further

ORDERED that the action with respect to the only remaining defendant, The City, shall continue.

This is the decision and order of the court.

Dated: January 9, 2014