McCullough v. Riverbay Corp. — 150 A.D.3d 624

Majority

p. 624

Audrey McCullough, Respondent, v Riverbay Corporation, Appellant.

[52 NYS3d 854]

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered September 30, 2016, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Defendant established entitlement to judgment as a matter of law by demonstrating that the defect in the sidewalk that allegedly caused plaintiff to trip and fall was trivial, and that there were no surrounding circumstances that magnified the dangers it posed (see Hutchinson v Sheridan Hill House Corp., 26 NY3d 66 , 77-78 [2015]). Defendant submitted photographs and measurements, which showed that the height differential

p. 625

between the expansion joint and the sidewalk flags was less than half an inch. The photographs did not depict any jagged edges or any rough, irregular surface, and the expansion joint was not difficult to see or pass over safely on foot, given plaintiffs testimony that the accident occurred on a sunny day and she was the only person traversing the pathway. Plaintiffs testimony that the defect was two-to-four inches high was speculative, since she did not measure the defect (see Vazquez v JRG Realty Corp., 81 AD3d 555 [1st Dept 2011]).

Concur— Acosta, P.J., Friedman, Andrias, Webber and Gesmer, JJ.

Cases cited

Hutchinson v. Sheridan Hill House Corp. 26 NY3d 66 N.Y. 2015-10-20 at 77-78 p. 624