Cogen v. 328 Atlantic LLC, et al.  Supreme Court, Kings County, Index No: 515210/2022

 

Plaintiff claimed that she tripped and fell as a result of defect on a sidewalk.  In support of her claim, she testified that she was present when a representative from her attorney’s office took post-accident photographs of the sidewalk as she pointed out the condition to him.  One photograph depicted a tape measure showing that the section of the sidewalk slab involved in her accident contained a less than a one-quarter of an inch height differential from the rest of the sidewalk.  We argued that her testimony locked her into that specific location as being the condition involved in her accident and that the condition was a non-actionable trivial defect pursuant to the holding in Trincere v. County of Suffolk, 90 N.Y.2d 976 (1997).  Plaintiff’s expert maintained that his measurement of portions of the subject sidewalk flag reflected a height differential of as much as an inch and a half.  Our counter argument was that this was irrelevant, since plaintiff at her deposition admitted the actual height differential in question was the one shown in the photograph with the tape measure.  Upon oral argument by Senior Counsel Sean Latella, Judge Levine was ultimately swayed by the depiction of the alleged defect in the photographs and did not consider the unsworn affidavit of the plaintiff’s expert.  He therefore dismissed the plaintiff's Complaint from the bench, without reaching the second prong of our argument, which was that our client was a contractor working on the interior of the building, and had no obligation to maintain or repair the sidewalk.