Defendant is not entitled to dismissal of the complaint on the basis that the alleged defect on the sidewalk abutting its property was not the cause of plaintiff's fall. Plaintiff consistently and unequivocally testified that she tripped on an uneven sidewalk abutting 1577 Third Avenue and that she immediately realized that a raised sidewalk flag extending about an inch above its adjoining flag had caused her fall. At her deposition, plaintiff pinpointed the alleged defect by indicating its location in photographs of the sidewalk, which depicted a raised sidewalk flag.
Defendant also is not entitled to summary judgment on the basis that the alleged defect was trivial. In light of plaintiff's testimony, photos of the accident location, and the conflicting expert affidavits on the height differential of the sidewalk flags, there are triable issues of fact as to whether the defect was trivial. In particular, while defendant's expert testified that the height difference between the two sidewalk flags was one quarter of an inch and was trivial, plaintiff's expert concluded that the height difference was three quarters of an inch and presented a tripping hazard. Moreover, defendant waived any objection to plaintiff's expert's affidavit as untimely or speculative by not objecting to its being considered on the motion.
Shapiro v. 89th St. Dev. Co. LLC, NY 05211 (1st Dep't October 12, 2023)
