

McCullough v Riverbay Corp. (2017 NY Slip Op 04231)





McCullough v Riverbay Corp.


2017 NY Slip Op 04231


Decided on May 30, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 30, 2017

Acosta, P.J., Friedman, Andrias, Webber, Gesmer, JJ.


4141 20429/14E

[*1]Audrey McCullough, 	 Plaintiff-Respondent,
vRiverbay Corporation, Defendant-Appellant.


Malapero & Prisco, LLP, New York (Jeffrey N. Rejan of counsel), for appellant.
Mallilo & Grossman, Flushing (Joanna J. Lambridis of counsel), for respondent.

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 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 plaintiff's testimony that the accident occurred on a sunny day and she was the only person traversing the pathway. Plaintiff's 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]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 30, 2017
CLERK


