178 Avenue D
178 Avenue D (NYLJ/Rick Kopstein)

A divided state appeals panel has dismissed a lawsuit filed by a New York City Housing Authority resident who claimed he tripped on a tree well in his complex, saying he undermined his case by changing his account of the accident almost two years after it happened.

The plaintiff, Guillermo Robles, has maintained that he initially identified the wrong tree well as the site of the accident because of misleading photographs.

The 3-2 decision in Robles v. NYCHA, 109463/09, handed down Tuesday, reversed a decision by Manhattan Supreme Court Justice Joan Madden (See Profile) allowing the suit to go forward.

Justices David Friedman (See Profile), Richard Andrias (See Profile) and Leland DeGrasse (See Profile) joined in the majority. Justice Rolando Acosta (See Profile) dissented, joined by Justice Helen Freedman (See Profile).

Robles alleges that he tripped and fell against a tree in a tree well in April 2008 while crossing a courtyard in front of his building at 178 Avenue D in Manhattan. He was 73 at the time. A woman who lived nearby, Lynda Negron, saw Robles fall and called his grandson, Kenneth Robles Jr., who accompanied his grandfather to the hospital. The elder Robles needed surgery.

Pursuant to General Municipal Law §50-h, he filed a notice of claim against NYCHA and appeared for a 50-h hearing. At that hearing, he was shown photographs of a tree well that he identified as the site of the accident. He maintained that the concrete perimeter around the tree well was raised and defective, creating a dangerous condition. In July 2009, Robles filed suit.

At the end of March 2010, however, he served a bill of particulars identifying, for the first time, a different tree well in another part of the courtyard as the site of the accident. This was based on a report prepared by his expert witness, who inspected the courtyard in April 2008. Nevertheless, at his deposition he again identified the first tree well as where he tripped.

In opposing NYCHA’s motion to summary judgment, Robles submitted affidavits from Negron and from Kenneth Robles, who said the tree identified in the bill of particulars was the correct one.

NYCHA moved to dismiss the case, arguing that it had been prejudiced by Robles’ initial, incorrect notice of claim, or, alternatively, that Robles was trying to create a false issue of fact by identifying a different tree well in order to overcome summary judgment.

Madden denied that motion, and NYCHA appealed.

The First Department majority held in an unsigned opinion that the case must be dismissed.

“In addition to giving a vague description in his notice of claim that did not describe the location of the alleged defect with sufficient particularity … plaintiff gave contradictory versions of the accident location, which further rendered the notice of claim defective, since it served to obscure the correct location,” the majority wrote.

The change “prejudiced defendant’s ability to conduct a meaningful and timely investigation of the claim,” the majority said.

Moreover, the majority noted, Robles had “ample opportunity” to review the photographs shown to him at his initial hearing and at his deposition when he first identified the tree well where he fell.

The majority further ruled that the affidavits from Kenneth Robles and Negron should have been precluded because Robles failed to provide the names and addresses of the witnesses until opposing summary judgment— four months after filing a note of issue—despite repeated requests from NYCHA and court orders to identify all witnesses.

“Under these circumstances, where plaintiff repeatedly failed to meet his discovery obligations, both before and after his deposition, and offered no valid excuse for his failure to do so, preclusion is warranted,” the majority stated.

Acosta, in his dissent, said the differences between Robles’ descriptions of the accident should not have been fatal to the case and that Kenneth Robles’ affidavit was rightly allowed. The photographs Robles was shown at his 50-h hearing and his deposition, he said, were potentially misleading.

“As observed by the motion court, none of the photographs offered to plaintiff at his hearing depicted the entire courtyard, and they lacked points of orientation,” he wrote. “Given the foregoing, and insofar as all the tree wells in the courtyard are nearly identical, plaintiff’s misidentification appears to be an inadvertent error.”

He also said that NYCHA was not prejudiced because it chose not to investigate the tree well after receiving the notice of claim.

Acosta also said Kenneth Robles’ affidavit was rightly admitted because he was at the scene of the accident and in the hospital with his grandfather, meaning that NYCHA knew about him.

“We were disappointed by the result,” said Robles’ attorney, Susan Nudelman. They have not yet decided whether to appeal, which they can do as of right in a 3-2 decision.

“We believe the court properly applied the law based on the facts and the issues presented to it,” said Joseph Fegan, a partner at Cullen & Dykman, who represents NYCHA.