Defendants Bear Burden To Show Alleged Sidewalk Defect Substantial And Not the Cause Of Plaintiff’s Fall
In its November 21, 2022, decision Hawkins v. Terence Cardinal Cooke Health Care Ctr. (2022 N.Y. Slip Op. 33914), the Supreme Court, New York County denied defendant’s motion for summary judgment which was based upon the plaintiff’s inability to identify where she fell or the defect that caused her accident. The Plaintiff alleged that while she was walking on Fifth Avenue she fell at 1259 Fifth Avenue, and after the defendant denied ownership of that location, amended the pleadings to 1249 Fifth Avenue. The Court in coming to its conclusion looked at precedent that held a defendant was not entitled to summary judgment simply because a plaintiff could not say with certainty that an elevation in the sidewalk was the reason for a fall, but that it was the defendant’s burden to show that the alleged sidewalk defect was not the cause of plaintiff’s fall (Tiles v. City of New York, 262 A.D.2d 174 (1st Dept. 1999)), and that any inconsistencies in testimony would be left for a trier of fact (Narvaez v. 2914 Third Ave. Bronx, LLC, 88 A.D.3d 500, 501 (1st Dept. 2011)). The Court, further, provided a detailed resuscitation of the applicable, well-known statutes that control in such circumstances. Specifically, New York City Admin. Code§ 7-210(a) and (b) that require the owner of real property to maintain the abutting sidewalk in a reasonably safe condition and imposes a nondelegable duty upon the owner for any injury for a failure to do so. Failures to maintain the sidewalk in a reasonably safe condition include the negligent failure to install, construct, reconstruct, repave, or repair the sidewalk. Moreover, the Court looked to the New York City Department of Transportation Highway Rules (34 RCNY § 2-09(5)(iv)) and a further provision of the New York City Administrative Code, Section 19-152 which govern the seriousness of sidewalk defects. Both statutes define a “substantial defect” as a trip hazard where the vertical differential between adjacent flags is greater than or equal to 1 /2″ or where a flag contains one or more surface defects of one inch or greater in all horizontal directions and is 1 /2″ or more in depth. In denying the defendant’s motion for summary judgment, the Court looked to the testimony and affidavit of the plaintiff, witness affidavits, and plaintiff’s engineering affidavit and report that showed a 2 ¼ inch height difference in flags where the plaintiff alleged she was injured. This case serves as a reminder of the clear, quantifiable nature of sidewalk defects that can expose property owners to liability and the well-established law concerning the duty of a landowner to maintain the sidewalks abutting their property. Please contact John Diffley with any questions.
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