Court: Supreme Court, Appellate Division, Second Department, New York.

Case: Soussi v. Gobin

Date: Aug. 9, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens Bronx; Queens accident attorney)

Comment: Accident victim is walking on sidewalk and sees it's newly poured. Nevertheless, she steps on mesh that's sticking out, catches her heel, and falls. Are we surprised that the Court tossed her case?

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RELATED POSTS:

NO SUMMARY JUDGMENT TO PROPERTY OWNER IN BROKEN SIDEWALK ACCIDENT, EVEN THOUGH SIDEWALK NEXT TO FIRE HYDRANT (Posted by Queens accident attorney Gary E. Rosenberg on Aug 31, 2011)

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In an action to recover damages for personal injuries, the plaintiff appeals (1) from a judgment of the Supreme Court, Kings County (Schack, J.), dated March 26, 2010, which, upon an order of the same court dated January 22, 2010, granting the defendants' separate motions for summary judgment dismissing the complaint, is in favor of the defendants and against the plaintiff dismissing the complaint, and (2), as limited by her brief, from so much of an order of the same court entered August 2, 2010, as, upon reargument, adhered to the prior determination in the order dated January 22, 2010.

On October 14, 2006, the plaintiff was a tenant in a two‑family residence owned by the defendant Christopher Gobin. That morning, the defendant Plaza Contracting Corporation (hereinafter Plaza), a contractor hired by Gobin, was in the process of replacing the sidewalk in front of the premises. Plaza's work had progressed to the point that the existing sidewalk had been removed, the earth beneath the sidewalk had been leveled, a wire mesh grid had been placed on top of the earth, and concrete had been poured for a portion of the new sidewalk. At about 10:30 A.M., the plaintiff left her apartment and, despite her observations of the work in progress, attempted to walk across the excavated area where the mesh grid was still exposed. The plaintiff alleges that the heel of one of her boots became stuck in the grid, causing her to fall and sustain injuries. After depositions had been conducted, the defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted the defendants' motions for summary judgment, and adhered to its determination on reargument.

In support of his motion for summary judgment, Gobin made a prima facie showing that he was exempt from the statutory liability imposed by section 7_210(b) of the Administrative Code of the City of New York for the failure to maintain the sidewalk in a reasonably safe condition because his property was an owner‑occupied two‑family residence (see Gilmartin v. City of New York, 81 A.D.3d 411, 412, 915 N.Y.S.2d 556; Schwartz v. City of New York, 74 A.D.3d 945, 946, 903 N.Y.S.2d 93). Gobin also made a prima facie showing that he could not be held liable for the plaintiff's accident under common law principles by submitting evidentiary proof that the condition which caused the accident was created by an independent contractor hired to replace the sidewalk (see Kleeman v. Rheingold, 81 N.Y.2d 270, 273, 598 N.Y.S.2d 149, 614 N.E.2d 712; Fernandez v. 707, Inc., 85 A.D.3d 539, 926 N.Y.S.2d 408; Posa v. Copiague Pub. School Dist., 84 A.D.3d 770, 922 N.Y.S.2d 499; Sanchez v. 1710 Broadway, Inc., 79 A.D.3d 845, 846, 915 N.Y.S.2d 272). In opposition, the plaintiff failed to raise an issue of fact as to either Gobin's exemption from statutory liability, or the existence of any recognized exception to the independent contractor rule (see Rosenberg v. Equitable Life Assur. Socy. of U.S., 79 N.Y.2d 663, 668, 584 N.Y.S.2d 765, 595 N.E.2d 840; Sanchez v. 1710 Broadway, Inc., 79 A.D.3d at 847, 915 N.Y.S.2d 272).

Plaza also made a prima facie showing of its entitlement to judgment as a matter of law by submitting evidentiary proof, including the plaintiff's deposition testimony and photographs of the accident site, that established that the temporary condition which caused the accident was open and obvious, and not inherently dangerous (see Capasso v. Village of Goshen, 84 A.D.3d 998, 922 N.Y.S.2d 567; McGrath v. Oyster Bay Visiting Nurse Assn., Inc., 84 A.D.3d 894, 923 N.Y.S.2d 162; Dinallo v. DAL Elec., 43 A.D.3d 981, 982, 842 N.Y.S.2d 519; Fernandez v. Edlund, 31 A.D.3d 601, 602, 819 N.Y.S.2d 291; Sun Ho Chung v. Jeong Sook Joh, 29 A.D.3d 677, 678, 815 N.Y.S.2d 641; Orlando v. Audax Constr. Corp., 14 A.D.3d 500, 501, 788 N.Y.S.2d 173; Greenstein v. Realife Land Improvement, Inc., 13 A.D.3d 338, 339, 786 N.Y.S.2d 110). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's affidavit, in which she contradicted her deposition testimony by claiming that the mesh grid appeared to be flush with the excavated surface, was an attempt to raise a feigned issue of fact as to whether the condition was open and obvious and, thus, insufficient to defeat summary judgment (see Freiser v. Stop & Shop Supermarket Co., LLC, 84 A.D.3d 1307, 923 N.Y.S.2d 732; Capasso v. Capasso, 84 A.D.3d 997, 923 N.Y.S.2d 199; Russ v. Fried, 73 A.D.3d 1153, 1154, 901 N.Y.S.2d 703; Sherman_Schiffman v. Costco Wholesale, Inc., 63 A.D.3d 1031, 884 N.Y.S.2d 760).