Supreme Court, Richmond County

Decided on March 12, 2026

Index No. 150566/2023

Ronald Castorina, Jr., J.

[*1]

I. Statement Pursuant to CPLR § 2219 [a]

The following papers were considered in connection with defendants' motion pursuant to CPLR § 3212 for summary judgment, or, in the alternative, partial summary judgment pursuant to CPLR § 3212 [e] and [g]: Notice of Motion, Affirmation in Support of Nicole Callahan, Esq., Statement of Material Facts, and Exhibits annexed thereto (NY St Cts Filing [NYSCEF] Doc Nos. 62-77 and supporting exhibits); Affirmation in Opposition of Daniel J. Costello, Esq., and Exhibits annexed thereto (NY St Cts Filing [NYSCEF] Doc Nos. 78 et seq.); Affirmation in Reply of Nicole Callahan, Esq. (NY St Cts Filing [NYSCEF] Doc No. 82). Oral argument was conducted in person at the courthouse on March 12, 2026.

Upon the foregoing papers, the motion is determined as follows.

II. Procedural Posture

This is an action sounding in negligence arising from an incident alleged to have occurred on September 29, 2022. Plaintiffs commenced the action by filing a Summons and Verified Complaint on March 23, 2023 (NY St Cts Filing [NYSCEF] Doc Nos. 1-2). Issue was joined by service of defendants' Verified Answer on August 18, 2023 (NY St Cts Filing [NYSCEF] Doc No. 7). An Amended Complaint was filed on March 5, 2025, and defendants interposed an Answer thereto on May 25, 2025.

Discovery ensued, including the depositions of plaintiff Eveline Melis, plaintiff Roger Melis, and Dean Speciale on behalf of defendants. A Note of Issue was filed on October 1, 2025 (NY St Cts Filing [NYSCEF] Doc No. 35). The present motion was timely made pursuant to the Court's November 25, 2025 Order (NY St Cts Filing [NYSCEF] Doc No. 53).

No prior request for the relief sought herein has been made.

III. Findings of Fact

Plaintiffs allege that on September 29, 2022, plaintiff Eveline Melis fell while walking along a sidewalk and adjacent dirt area located on Olympia Boulevard, approximately 30-45 feet northeast of the intersection of Olympia Boulevard and Seaview Avenue in Staten Island, New York (Statement of Material Facts ¶ 1; Exhibit C ¶ 4).

Plaintiffs contend that Ms. Melis was caused to lose her balance and fall due to what they characterize as a "dangerous height differential" between the concrete sidewalk and the adjacent natural ground (Exhibit C ¶ 5). Ms. Melis testified that the "cement was a little bit higher than the dirt area," describing a "little ledge" that her foot struck, causing her to lose balance and fall (Exhibit D, p. 21:17-21).

The record establishes that, on the evening in question, plaintiffs exited the building known as 501 Seaview Avenue, turned right, and proceeded along Olympia Boulevard toward Seaview Avenue (Exhibit D, pp. 17:12-18:18; Exhibit E, pp. 12:17-13:23). Both plaintiffs testified that it was [*2]sunny, daylight, and bright at the time of the incident (Exhibit D, p. 19:12-18; Exhibit E, p. 14:14-16).

Prior to the incident, Ms. Melis had traversed the same route approximately ten to twelve times (Exhibit D, p. 20:13-19), and Mr. Melis had traversed the sidewalk numerous times (Exhibit E, p. 20:4-14).

Photographs produced by plaintiffs depict the subject location (Exhibit H; Exhibit I). Defendants' expert, Bernard P. Lorenz, P.E., opines that the elevation differential between certain areas of the sidewalk and adjacent natural ground is approximately one inch (Exhibit J ¶ 17), and that the sidewalk surface itself was firm, planar, and free from broken or damaged sections (Exhibit J ¶¶ 11—13).

The record further reflects that the area is inspected every morning (Exhibit F, p. 30:8-10), and that no complaints were received, nor were there prior accidents at the location (Exhibit N ¶¶ 6—7; Exhibit O ¶¶ 6—7).

Plaintiffs, in opposition, submit the report of Nicholas Bellizzi, P.E., who personally inspected the site and measured the vertical height differential as greater than one inch over approximately ten inches. Plaintiffs argue that the condition constitutes a substantial defect and was not trivial.

IV. Conclusions of Law

A. Summary Judgment Standard

CPLR § 3212 provides that summary judgment shall be granted when, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court, as a matter of law, in directing judgment in favor of any party.

Summary judgment is appropriate when there are no genuine issues of material fact to be resolved by the trier of fact (see Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285 [1973]). The proponent must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence demonstrating the absence of material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Once that showing has been made, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

B. Existence of a Dangerous Condition

Negligence cannot be presumed from the mere happening of an accident; it must be proven (see Evans v State of New York, 55 Misc 3d 221 [Ct Cl 2016]). A property owner has a duty to maintain its premises in a reasonably safe condition (see Walsh v Super Value, Inc., 76 AD3d 371 [2d Dept 2010]).

Defendants contend that the sidewalk was in good repair and in compliance with applicable codes, including NYC Department of Transportation Highway Rules § 2-09 and Administrative Code §§ 19-152 and 7-210. They further assert that these provisions concern maintenance of sidewalk flags and do not impose requirements regarding natural ground adjacent to the sidewalk.

The record demonstrates that the sidewalk itself was not broken, misaligned, or otherwise defective. Plaintiffs' claim rests upon the elevation differential between the concrete sidewalk and the adjacent natural ground.

While defendants' expert characterizes the differential as approximately one inch and opines that it is ubiquitous and code-compliant, plaintiffs' expert measured the differential as greater than one inch and opines that it constituted a defective, uneven, and depressed condition.

On this record, there exists a factual dispute as to the precise dimensions, configuration, and physical characteristics of the height differential. The conflicting expert submissions, each grounded in inspection and measurement, preclude the Court from resolving as a matter of law whether the condition was reasonably safe.

C. Open and Obvious Condition

A landowner has no duty to protect or warn against an open and obvious condition that is not inherently dangerous (see Mathew v A.J. Richard & Sons, 84 AD3d 1038 [2d Dept 2011]). Whether a condition is open and obvious must be determined in light of the totality of the circumstances (see Graffino v City of New York, 162 AD3d 990 [2d Dept 2018]). Defendants argue that a height differential between grass and sidewalk is, as a matter of law, open and obvious and not inherently dangerous (see D'Angelo v DeLucia, 283 AD2d 385 [2d Dept 2001]; Seelig v Burger King, 66 AD3d 986 [2d Dept 2009]).

However, the determination of whether the specific condition at issue, its size, abruptness, visual appearance, and placement along the path of travel, was readily observable to a reasonably attentive pedestrian under the prevailing circumstances remains a fact-intensive inquiry. Although plaintiffs testified that it was daylight and bright, Ms. Melis also described an unexpected "ledge" that caused her foot to drop.

Given the disputed measurements and characterizations of the differential, the Court cannot conclude, as a matter of law, that the condition was not inherently dangerous.

D Trivial Defect Doctrine

It is well settled that trivial defects are not actionable (see Trincere v County of Suffolk, 90 NY2d 976 [1997]). In determining triviality, courts consider width, depth, elevation, irregularity, and the surrounding circumstances (id.; Guerrieri v Summa, 193 AD2d 647 [2d Dept 1993]).

Defendants characterize the differential as approximately one inch and trivial. Plaintiffs' expert measured the differential as greater than one inch and extending over a ten-inch span, describing it as depressed and uneven.

The Court of Appeals in Trincere made clear that there is no per se rule based solely on dimension. Rather, the court must consider the totality of the circumstances. Here, the conflicting expert measurements and descriptions, combined with the physical evidence and testimonial accounts, raise issues of fact as to whether the condition was trivial or constituted a trap, snare, or nuisance.

E. Notice

Defendants submitted evidence that the area was inspected daily and that no prior complaints [*3]or accidents were reported. However, defendants' own witness testified that the area, including the grassy strip, was within defendants' maintenance responsibilities and was visually inspected regularly.

Constructive notice may be inferred where a condition is visible and apparent and existed for a sufficient length of time to permit discovery and remedy. The record contains evidence from which a trier of fact could infer that the differential was longstanding. Accordingly, issues of fact exist as to constructive notice.

F. Derivative Claim

Defendants correctly note that a loss of consortium claim, while separate and distinct, is dependent upon the viability of the underlying negligence claim (see Buckley v Nat'l Freight, 220 AD2d 155 [2d Dept 1996]). As the underlying claim survives, dismissal of the derivative claim is unwarranted at this juncture.

V. Conclusion and Decretal Paragraphs

Summary judgment is a drastic remedy and should not be granted where material issues of fact remain (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Here, conflicting expert opinions, disputed measurements of the alleged height differential, and factual questions concerning the character of the condition, its visibility, triviality, and defendants' notice preclude a determination as a matter of law.

Accordingly, it is hereby

ORDERED that defendants' motion for summary judgment pursuant to CPLR § 3212 is DENIED in its entirety; and it is further

ORDERED that defendants' alternative request for partial summary judgment pursuant to CPLR § 3212 [e] and [g] is DENIED; and it is further

ORDERED that the action shall proceed to trial on all remaining issues.

This constitutes the Decision and Order of the Court.

Dated: March 12, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT