A lady was walking along the sidewalk on 3998 Victory Boulevard. The sidewalk had a covered manhole on it and there was a crack leading from the manhole cover measuring about two to four inches long. The crack on the pavement raised a portion of the sidewalk around two inches above the manhole cover. This portion of the sidewalk abuts the driveway of a couple’s house and the sidewalk is located right in front of the house of the couple. In fact, there is evidence presented that in order for the couple to get to and from their house they will have to pass the portion of the sidewalk where the manhole is located.
As the lady was passing in front of the couple’s house, she tripped and fell because of that crack in the sidewalk and because of the raised portion of the pavement around the covered manhole. She sued the City of New York and the couple for damages arising from negligence.
The City of New York appeared during the pre-trial to ask the court to be dropped as defendant in the damage suit as the Administrative Code of New York City provides that the city shall not be liable for any personal injury that was caused by the failure to maintain sidewalks that traverse a property which is occupied by the owner and used exclusively for residential purposes. The trial court granted the motion of the City of New York.
After all the depositions had been taken, the couple then moved for a summary judgment on the complaint. They asked that it be dismissed as the lady had failed to demonstrate that they created the crack in the sidewalk which caused the injury to her. They also asked that the complaint against them be dismissed because the lady failed to demonstrate that the couple had actual or constructive notice that the sidewalk was cracked.
The Court observed that in a trip and fall case such as this, the couple who had moved for a summary judgment of dismissal must be able to show from the admissible evidence (such as the depositions) that it had not created the dangerous condition of the cracked sidewalk or had actual or constructive notice of the crack in the sidewalk. This is not the job of the lady but of the couple. Once the couple has satisfied this requirement, the court will then look at the lady’s evidence to see if indeed she has not satisfactorily presented prima facie evidence that the couple created the dangerous condition and that they had notice of the existence of the dangerous condition for injury.
Looking at the pleadings and documents submitted as well as the testimonies during the deposition, it is clear that the lady had made sufficient claims and had submitted prima facie evidence in her deposition that the couple had used the sidewalk as part of their driveway and that they use the driveway every day. From this, it can be inferred that their use may have created the crack and that their use of the driveway may have made them aware of the condition of the pavement.
The factual issue of the relative locations of the sidewalk, the manhole and the driveway has yet to be established at trial. The fact that the couple used the sidewalk as part of their driveway must also be determined. How often they used it and how long the crack had been there must also be proved during a trial.
For these reasons, the court denies the couple’s motion for summary judgment as there are still factual issues that have to be heard, tried and determined by the court.
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