The following e-filed documents, listed by NYSCEF document number (Motion 002) 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50 were read on this motion to/for JUDGMENT - SUMMARY.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68 were read on this motion to/for JUDGMENT - SUMMARY.

In this proceeding, defendant the City of New York ("the City") moves, unopposed, for an Order pursuant to CPLR 3212 granting the City summary judgment (motion sequence 002).

Defendant 148 E. Broadway Associates LLC ("148 E. Broadway") moves for an Order pursuant to CPLR 3212 granting summary judgment and dismissing all claims and cross-claims as to it (motion sequence 003).

This action arises out of personal injuries allegedly sustained by plaintiff on February 17, 2021, when plaintiff allegedly tripped and fell on the sidewalk located in front of 148 East Broadway ("subject property') in the County, City and State of New York. Plaintiff commenced this proceeding by the filing of a Summons and Complaint on September 3, 2021. The City joined issue by service of its Answer on or about October 9, 2021. On or about November 11, 2011, co-defendant 148 E. Broadway filed its Answer. The Note of Issue was filed on April 4, 2025.

To prevail on a motion for summary judgment, the movant must make a prima facie showing of entitlement, tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact (Zuckerman v City of NY, 49 NY2d 557 [1980]; Jacobsen v New York City Health and Hospitals Corp., 22 NY3d 824 [2014]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party (Jacobsen, 22 NY3d at 833). If the moving party fails to make its prima facie showing, the court is required to deny the motion, regardless of the sufficiency of the non-movant's papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). If the moving party meets its burden, the burden shifts to the party opposing the motion to establish, by admissible evidence, the existence of a factual issue requiring a trial of the action (Zuckerman, 49 NY2d at 560; Jacobsen, 22 NY3d at 833).

In support of the motion, the City argues pursuant to § 7-210 of the Administrative Code of the City of New York, the City is not liable for plaintiff's alleged injuries. The City contends that plaintiff's pleadings, testimony, and photographs consistently identify the sidewalk abutting the adjacent commercial building to 148 East Broadway (see NYSCEF Docs. 39,40,42,44), and as such, the City argues that it was not the owner of the property at the time of the accident. In support of this argument, the City points to the Affirmation of David C. Atik, an employee of the New York City Department of Finance, wherein he affirms that on February 17, 2019, the City did not own the property and that said property was classified as Building Class D6 (elevator apartments with stores), and not a one-, two-, or three-family solely residential property (see NYSCEF Doc. 48). The City also submits an Affirmation of David Schloss, New York City Law Department senior title examiner, who conducted a title search for the subject property, and affirmed that on the date of the alleged accident, record title to the subject property was in co-defendants 148 E Broadway pursuant to a deed recorded April 3, 2021 (see NYSCEF Doc. 49).

Additionally, the City argues that the Court should grant the City's motion for summary judgment because there is no evidence that the City caused or created the alleged condition. The City notes that during the course of discovery, a search was performed by Sherri Reid, an employee of the Department of Transportation, for records pertaining to the sidewalk at the subject property which revealed the following results: zero (0) permits, zero (0) hardcopy permits, zero (0) applications, zero (0) OCMC files, zero (0) CARs, zero (0) NOVs, zero (0) NICAs, zero (0) inspections, zero (0) contracts, zero (0) maintenance and repair orders/records, [*2]zero (0) complaints, zero (0) sidewalk violations, two (2) sidewalk inspections, zero (0) sidewalk re-inspections, zero (0) copies of sidewalk violations, zero (0) Office of Special Events Reports, and three (3) Big Apple Maps, labeled Volume 1N, Pages 51 & 54 and Volume 1S, Page 30 (see NYSCEF Doc. 47). As such, the City argues that there is no evidence that it caused or created the subject condition. Specifically, the City asserts as there were no permits returned in the search, there are no permits issued to the City or a city contractor that could indicate work done by or on behalf of the City.

Here, the City established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that it did not own the subject property abutting the property where plaintiff slipped and fell, and that the abutting property was not an owner-occupied residential property with three or fewer units (Crimlis v. City of New York, 179 AD3d 575, 575 [1st Dept 2020]). In turn, plaintiff failed to submit any opposition to the motion. As such, the City's motion for summary judgment is granted.

In support of the motion, 148 E. Broadway argues that the alleged defect plaintiff claims she tripped over is trivial and not actionable as a matter of law. Defendant points to the photographic evidence exchanged by plaintiff, which defendant claims shows a nearly pristine sidewalk and that there were no intrinsic characteristics or surrounding circumstances that magnify any so-called danger (see NYSCEF Doc. 61).

In opposition to the motion, plaintiff argues that defendant 148 E. Broadway failed to establish that the alleged defect that caused plaintiff to trip was trivial. Plaintiff highlights that the only characterization of the sidewalk is from defendant counsel's characterization" (see NYSCEF Doc. 52), and defendant failed to provide any expert opinion of the defect. In addition, plaintiff argues that she specifically testified that the photos do not adequately depict the depth of the hole as she recalled it when she saw it in person (see NYSCEF Doc. 60). Plaintiff also points to the deposition testimony of Emanuel Kaliontzakis, a shareholder and officer of the LLC, that owned the subject property, wherein he testified that the sidewalk was repaired because there was a height differential between sidewalk flags, and while he never measured it, he estimated the difference as "less than an inch" but could not say if it exceeded three quarters of an inch (see NYSCEF Doc. 62, pp. 26-27). Plaintiff also argues that defendant 148 E. Broadway's inability to deny this defect was at least three quarters of an inch deep precludes summary judgment. As such, plaintiff argues that in light of the testimony, it can hardly be said that the photos unequivocally demonstrate that the defect is trivial.

In reply, 148 E. Broadway argues that movant has established its prima facie entitlement to judgment as a matter of law and plaintiff has failed to raise an issue of fact in opposition. Furthermore, defendant 148 E. Broadway argues whether or not Mr. Kaliontzakis determined the sidewalk should be repaired in the context of his role as the property owner has no bearing on whether the alleged defect is actionable as a matter of law. As such, defendant 148 E Broadway contends that there are no questions of fact as to the fact that the sidewalk in issue was in a reasonably safe condition, and that the alleged defect is so insignificant as to be inactionable.

"[A] defect alleged to have caused injury to a pedestrian may be trivial as a matter of law, but requires a holding of triviality to be based on all the specific facts and circumstances of the case, not size alone" (Hutchinson v. Sheridan Hill House Corp., 26 NY3d 66, 77 [2015]). "A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant [*3]and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. Only then does the burden shift to the plaintiff to establish an issue of fact" (id. at 79). "There is no 'minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable" (id., citing Trincere v. County of Suffolk, 90 NY2d 615 [1007]), however, "defendants bear the burden of demonstrating that the defect is trivial by providing evidence including details.

Here, defendant 108 E. Broadway failed to demonstrate entitlement to summary judgment since it did not establish that the defect in question was trivial. The court notes that, it is defendant's burden on this motion to establish that the alleged defect which caused plaintiff's fall was trivial. Moreover, defendant 108 E. Broadway relies solely on photographs taken by the plaintiff (NYSCEF Doc. 61) to support its position that the alleged defect plaintiff tripped over was trivial. Significantly, the photographs do not show the dimensions, or the full context of the defect, and the court finds that plaintiff's testimony raises an issue of fact with respect to the alleged defect (Munasca v. Morrison Management LLC, 111 AD3d 564, 564 [1st Dept 2013] ["The pictures submitted by defendants in support of their motion do not unequivocally demonstrate that the complained-of-defect is trivial as a matter of law since its size is not discernable.."]; Rivas v. Crotona Estates Housing Development Fund Co., 74 AD3d 541, 542 [1st Dept 2010] ["In the absence of evidence demonstrating the depth of the defect, and in light of plaintiff's testimony that her injury resulted from her heel getting caught in a hole caused by a missing tile, issues of fact remain as to whether the nature of the defect was such as to constitute a tripping hazard"]; see also Valentin v. Columbia University, 89 AD3d 502, 502 [1st Dept 2011]).

Accordingly, it is hereby

ORDERED, that the City's motion for summary judgment is granted; and it is further

ORDERED, that defendant 108 E. Broadway's motion is denied; and it is further

ORDERED, that since the City is no longer a party to this action, the Trial Support Office shall reassign this action to the inventory of a non-City Part.

This constitutes the Decision and Order of the Court.