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A woman was walking on the sidewalk on 20th Street in New York City at around 6:30 p.m. When she reached the sidewalk just outside the premises of 326 West 20th Street, her foot got caught on a crack in the sidewalk that had caused a portion of the sidewalk to be raised by at least an inch. This crack caused her to trip and fall and she sustained injuries.
On the premises of 326 West 20th Street is a row house where a family has resided since 1979. They owned the premises and they have had it repaired two times since then. The first repair work was done in 1988 and involved the sidewalk flag where the lady tripped and fell. The second repair work was made in 1998. To accomplish the repair work, the owner of the premises, he hired a plumber. At his deposition, the owner of the premises did not give the name of the plumber and merely stated his opinion that it might have been the plumber who made the repairs on the sidewalk and caused the creation of the crack.
The owner of the premises testified also that he did not know how long the crack on the sidewalk had existed but he stated that the crack probably grew larger because a tree growing on the sidewalk had caused the crack to grow larger.
The lady filed the complaint for damages on September 6, 2006 for the injury she sustained as a result of the trip and fall. Two years later, on April 21, 2008, the owner of the premises filed a third-party complaint against the plumber who did the second repair work on his property in 1998.
It is the plumber who has moved for summary judgment dismissing the third-party complaint that the owner of the premises filed against him. He claims that the deposition of the property owner where he was named as the plumber who did the repair work was never signed by him. The same deposition of the property owner was not returned by the property owner within sixty days. The plumber also claims that he was not served the Bill of Particulars and he was belatedly named as the plumber who did the work. The plumber also contends that he cannot be held liable for the lady’s trip and fall because the City’s duty to maintain the public sidewalk cannot be delegated. But the Court ruled that even if the City were to be found liable for its failure to maintain the sidewalk where the lady tripped, the City will always be able to seek liability from the owner of the premises and the plumber. More importantly, the plumber has given evidence by way of a deposition testimony of its president that the plumber has not done any plumbing work outside of the premises or on the sidewalk in 1998.
In resolving the plumber’s motion for summary judgment, the Court found that he is entitled to the judgment as he had offered proof that he never performed any work on the sidewalk or roadway adjacent to the premises of 326 West 20th Street.
The Court also resolved to grant the plumber’s motion for summary judgment because the property owner’s deposition not only failed to name the plumber but also, the Court noted that the property owner only indicated that the plumber might have performed work on the sidewalk which contained the crack. The property owner, at his deposition, was not sure that it was this particular plumber who performed the work. This tentative and unsure testimony cannot be believed when it is put side by side with the positive assertion of the plumber that they never performed plumbing repair work on the sidewalk.
The Court granted the plumber’s motion for summary judgment and declared that the complaint filed by the property owner against the plumber is severed from the remainder of the action which shall continue to trial.
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