Upon the foregoing documents, it is ordered that plaintiff's motion for summary judgment is determined as follows:

Plaintiff Inocencia Galvez commenced this personal injury action to recover damages for injuries sustained on April 7, 2019, when she allegedly tripped and fell on a defective portion of the sidewalk abutting defendants' property located at 74-08 Jamaica Avenue in Queens County (the premises), where both a gas station and an auto repair shop are located.

Plaintiff now moves for an order, pursuant to CPLR 3212, granting plaintiff summary judgment on the issue of liability against defendants Nasho Ceko (Ceko) and George Kontadimas (Kontadimas) (together, the defendants), the joint property owners of the premises, and to strike defendants' affirmative defenses of comparative fault/culpable conduct. Defendants Ceko and Kontadimas interposed opposition to the instant motion.

In support of her motion, plaintiff submits, among other things, i) her attorney's affirmation, ii) Google Maps photographs from 2009, 2011, 2014, 2016, 2017, and 2018, and iii) six photographs marked as exhibits at the parties' depositions. Plaintiff's attorney affirmation in support also references additional documents, including, among other things, plaintiff's deposition transcripts dated May 11, 2022 and August 15, 2022 (NY St Cts Elec Filing [NYSCEF] Doc Nos. 123 and 124), defendant Kontadimas' deposition transcripts dated October 26, 2022 and January 19, 2024 (NYSCEF Doc Nos. 125 and 132), and defendant Ceko's deposition transcript dated January 19, 2024 (NYSCEF Doc No. 134) (see CPLR 2214 [c]).

Plaintiff testified at her deposition that on April 7, 2019, at approximately 5:45 a.m., while walking to work, she tripped and fell on the sidewalk adjacent to defendants' property. She testified that the toe of her left foot got caught in a hole in the divider of the sidewalk, "between cement and cement," causing her to fall forward onto her hands and knees. Plaintiff initially testified that, based on her memory on the day of the accident and when she revisited the site with her daughter, she believed the defect was "about 2 inches" in depth. When shown photographs by defendant's counsel, including a photo with a tape measure purportedly depicting the defect, plaintiff changed her testimony, stating that the depth was "one to two" inches, then "no, it's one and a half" inches. Plaintiff explained, "[i]n my memory, there was two. But the photograph shows to the contrary." Plaintiff contends that at minimum, plaintiff's testimony that the defect was one and a half inches deep violates the New York City Administrative Code and warrants entitlement to judgment as a matter of law on liability.

In opposition to the motion, defendants contend that they neither knew about nor saw the alleged defective condition. During his deposition, defendant Kontadimas testified that he owns the premises with defendant Ceko and they operate the auto repair shop on the premises. He testified that he is on the premises every day, except Sunday, and inspects the premises. When questioned about the frequency of his inspections, Kontadimas testified, "[w]hen I'm not busy I look a lot around the premises to see what's going on around the sidewalk" and "I do it all the time." Defendants contend that the Google photographs proffered by plaintiff were taken at a distance and do not show the alleged defect in detail, including whether it changed in size and depth in the years preceding the accident. Defendants further contends that the photograph used at the depositions shows an unreliable measurement with the tape measure, the angle in which the photograph renders the measurement unclear, and the absence of an expert affidavit by an engineer attesting to the dimensions of the alleged dangerous condition warrants denial of the motion. Defendants also contend that if the alleged defect existed and caused injury to plaintiff, [*2]the condition was open and obvious.

It is well established that the proponent of a summary judgment motion must make a prima facie case showing entitlement to judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). The court's role is "issue-finding, rather than issue determination" (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] [internal quotation marks omitted]). Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Collado v Jiacono, 126 AD3d 927 [2d Dept 2014]). It is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue (see Rotuba Extruders Inc. v Ceppos, 46 NY2d 223, 231 [1978]).

To establish a prima facie case of negligence against defendants, plaintiff seeking must establish that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries (see Shannon v Astoria 2101, LLC 240 AD3d 638, 638 [2d Dept 2025]). In order for a landowner or a party in possession or control of real property to be liable for a defective condition upon property, "it must be established that a defective condition existed and that the landowner affirmatively created the condition or had actual of constructive notice of its existence" (Sloan v 216 Bedford Kings Corp., 208 AD3d 1192, 1194 [2d Dept 2022]).

In cases involving sidewalk liability, the Administrative Code of the City of New York (NYC Admin. Code) §§ 7-210 (a), commonly referred to as the Sidewalk Law, imposes a non-delegable duty upon property owners to maintain sidewalks abutting their property "in a reasonably safe condition" (Curry v Eastern Extension, LLC, 202 AD3d 907, 908 [2d Dept 2022]). NYC Admin. Code § 19-152 (a) (4) defines a "substantial defect" as "a trip hazard, where the vertical grade differential between adjacent sidewalk flags is greater than or equal to one half inch or where a sidewalk flag contains one or more surface defects of one inch or greater in all horizontal directions and is one half inch or more in depth."

However, NYC Admin. Code § 7-210 does not impose strict liability upon the property owner for injuries arising from allegedly dangerous conditions on a sidewalk abutting their property (see Martinez v Khaimov, 74 AD3d 1031, 1032 [2d Dept 2010]). Rather, "the injured party has the obligation to prove the elements of negligence to demonstrate that an owner is liable under the Sidewalk Law" (id.).

Property owners will not be held liable for damages resulting from trivial defects (see Hutchinson v Sheridan Hill House Corp, 26 NY3d 66, 84 [2015]; Hagood v City of New York, 13 AD3d 413 [2d Dept 2004]). A determination of whether a defect is trivial should not rest on a "minimal dimension test" or "per se rule" that the condition must be of a certain height or depth in order to be actionable but should be based on the facts and circumstances of each particular case, including the "width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury" (Simos v Vic-Armen Realty, LLC, 161 AD3d 1023, 1024 [2d Dept 2018]). Generally, "whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" (Gallis v 23-21 33 Rd, LLC, 198 [*3]AD3d 730, 733 [2d Dept 2021] quoting Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]).

It is axiomatic that the proponent of a summary judgment motion must make a prima facie case showing entitlement to judgment as a matter of law by submitting sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]). Such evidence must be presented in admissible form (see Zuckerman v City of New York, 49 NY2d 557 [1989]). While images from web mapping services such as Google maps may be authenticated pursuant to CPLR 4532-b, all other photographs must be authenticated by providing "proof that the photographs were taken close in time to the accident and fairly and accurately represent the conditions as they existed on the date of the accident" (see Traca v Catapano Engineering & Architecture, PC, 237 AD3d 1134, 1135 [2d Dept 2025]; see also Schenpanski v Promise Deli, Inc., 88 AD3d 982, 984 [2d Dept 2011]). Here, the Google images and other photographs relied upon by plaintiff in support of her motion were either too far to determine the depth and dimension of the alleged defect or have not been properly authenticated. Plaintiff testified she did not take any of the photographs presented to her during the deposition, that she had not seen these photographs prior to her deposition, and that she had never gone with anybody to the accident site who measured the holes or cracks with a tape measure. No proof has been presented regarding who took the photographs, when they were taken, and no acknowledgment from a person with knowledge that these photographs fairly and accurately depict the condition of the sidewalk as it existed at the time of the accident have been submitted (id.). In the cases cited by plaintiff, none granted summary judgment based solely upon plaintiff's account of the dimensions of the defect. Even assuming plaintiff's deposition testimony is sufficient to establish a violation of NYC Admin. Code § 19-152 (a) (4), such violation would only constitute some evidence of negligence (see Martinez v Khaimov, 74 AD3d 1031 [2d Dept] citing Elliott v City of New York, 95 NY2d 730, 734 [2001]).

Upon the evidence presented, liberally construed in a light most favorable to the non-moving party (see Monroy v Lexington Operating Partners, LLC, 179 AD3d 1053 [2d Dept 2020]), the Court finds that plaintiff has not demonstrated entitlement to summary judgment as a matter of law. Accordingly, the motion is denied.

For all the foregoing reasons, it is hereby

ORDERED that plaintiff's motion for summary judgment on the issue of liability against defendants Nasko Ceko and George Kontadimas is denied; and it is further

ORDERED that plaintiff's motion to strike defendants' affirmative defenses of comparative fault/culpable conduct is denied; and it is further

ORDERED that defendants Ceko and Kontadimas shall serve a copy of this Decision and Order with Notice of Entry upon all parties within twenty (20) days of the date of entry.

This constitutes the Decision and Order of the Court.