This action was commenced by the filing of a summons and complaint by Nathaneal and Joanna Maldonado, the plaintiff and his wife, on October 16, 2007 for causes of action in negligence. In addition to claims of negligence, by their supplemental bill of particulars, the plaintiff alleges statutory violations of New York City Administrative Code §27-481, §27-127 and, §27-128, and New York City Department of Transportation Highway Rules and Regulations §209 (f)(1)and §209 (f)(5). Nathaneal Maldonado claims that he was injured at or about midnight on May 1, 2007, in a New York City Housing Authority (NYCHA) parking lot adjacent to 905 Eagle Avenue, Bronx, NY. It is alleged that a ball was thrown into the lot, and the plaintiff went to retrieve it. As he went toward the ball, he stepped onto a curb when his ankle buckled and he fell forward, sustaining physical injuries. Plaintiff claims that the curb was dangerous and defective in its nature, which defendant knew or should have known of, and negligently allowed to exist. The defendant moves for an order for summary judgment dismissing this action pursuant to CPLR 3212. Defendant contends that the condition alleged was open and obvious, and not inherently dangerous, that plaintiff never notified the defendant of a defect, that the claim for negligent maintenance is not supported by any evidence, and that plaintiff’s claims related to statutory violations are not sustainable. In support of the motion, the defendant submits copies of the pleadings, plaintiff’s verified and supplemental bills of particulars, plaintiff’s 50-H hearing and deposition transcripts, Earl Savage’s deposition transcript, photographs of the site of the accident, and copies of court orders. By court order, dated June 15, 2009, all derivative claims as to plaintiff’s wife were dismissed. A note of issue was filed on May 26, 2010. By order, dated February 17, 2017, the plaintiff was precluded from asserting claims, testifying about or claiming inadequate lighting or negligent design. By order dated February 6, 2018, the original note of issue was vacated. The plaintiff filed a second note of issue on August 30, 2018. The photographs submitted in support of the motion depict an openly observable curb. The plaintiff testified that he saw the curb as he went to retrieve the ball, and placed his left foot on it before he fell. Plaintiff testified that his injuries were caused by the height differential between the curb and the pavement. At his deposition, plaintiff testified that he did not, nor did anyone he knew of, make any complaints to NYCHA regarding a dangerous or defective curb. NYCHA employee and supervisor of caretakers Earl Savage testified that he inspected the curb and surrounding area once a month. Mr. Savage testified that the building’s superintendent, and the manager also independently inspected the area outside the building site on a monthly basis. Mr. Savage was not aware of any prior accidents in the area, or complaints related to the curb. The court may grant summary judgment to a landowner on the ground that the condition complained of by the plaintiff was both open and obvious, and as a matter of law, was not inherently dangerous. see eg. Samantha R. v. New York City Hous. Auth., 117 AD3d 600 (1st Dept. 2014). “For summary judgment to be granted, the moving party must make a prima-facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (Alvarez v. Prospect Hosp., 68 NY2d 320, 324; 508 NYS2d 923, 501NE2d 572 [1986]). If the moving party produces the required evidence, the burden shifts to the non-moving party “to establish the existence of material issues of fact which require a trial of the action.” (Vega v. Restani Constr. Corp., 18 NY3d 499, 503, 542 NYS2d 923, 501 NE2d 240, quoting Alvarez, 68 NY2d, at 324, 508 NYS 923, 501 NE2d 572).” Xiang Fu He v. Troon Management, Inc., 34 NY3d 167 (2019). Here, plaintiff testified that he saw the curb, and stepped onto it. In addition, the photographs of the area reflect an unobstructed and open view of the curb. The record demonstrates that the presence of the curb was open and obvious and observable to someone making reasonable use of their senses. See Philips v. Paco Lafayette LLC, 106 AD3d 631 (1st Dept. 2013); Rivera v. City of New York, 57AD3d 281 (1st Dept. 2008). To the extent that the dangerous condition alleged is related to the size of the curb, including height differentials, those claims are related to the design of the curb and have been precluded by prior court order. There are no discernible defects indicated in the photographic proof, or testimony, demonstrating the existence of any other dangerous condition as having precipitated plaintiff’s fall. Scholar v. Citadel Estates, LLC, 177 AD3d 440 (1st Dept. 2019). Furthermore, through the plaintiff’s testimony, and the testimony of NYCHA’s supervisor of caretakers at the premises, the defendant established it had no actual or constructive notice of any dangerous condition at the site of the accident. (see, Parra v. City of New York, 137 AD3d 532 [1st Dept. 2016]). As to the claims of statutory violations, pursuant to NYC Administrative Code §27-481, open parking lots shall be completely separated from adjoining lands by curbs and bumpers at least eight inches high and eight inches wide. The photographic and testimonial evidence demonstrates the function of the curb in this case was to separate a driveway from a walkway on NYCHA property, not an open parking lot from adjoining land. Accordingly, NYC Administrative Code §27-481 is inapplicable. New York City Department of Transportation Highway Rules and Regulations §209 (f) (1)and §209 (f)(5) require property owners to maintain sidewalks in good repair. However, according to New York City Department of Transportation Highway Rules and Regulations §2-01, the term sidewalk means that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for the use of pedestrians. The testimonial and photographic evidence establishes that the site of the accident was a walkway on defendant’s property, and not a sidewalk as defined by the statute. Therefore, the requirements of §2-09 (f)(1)and §2-09 (f)(5) are inapplicable. At the time of the incident, NYC Administrative Code §27-127 and §27-128 mandated owners to maintain premises in a safe condition. Defendant established that the area was inspected at least once a month by the supervisor of caretakers, as well as the building’s superintendent, and its manager, and that it had no actual or constructive notice of any dangerous condition at the site of the accident. There is no record of negligent maintenance or prior accidents. Furthermore, the plaintiff repeatedly testified that his injuries were caused by the height differential between the curb and the pavement. There is no testimony related to any other allegedly unsafe condition. The court finds on this record that the defendant has shown its entitlement to judgment as a matter of law. Accordingly, the burden shifts to the plaintiff to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of facts that require a trial of the action. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). Plaintiff submitted his attorney’s affirmation in opposition. Counsel relies on reports by their own purported expert, Stanley Fein, P.E., that were appended to those supplemental bills of particulars appended to defendant’s motion. Counsel contends that Mr. Fein will testify that pursuant to NYC Administrative Code §27-481, open parking lots shall be completely separated from adjoining lands by curbs and bumpers at least eight inches high and eight inches wide. Counsel asserts that Mr. Fein will testify that he measured the height differential between the top of the curb and the pavement, and at the site of the accident, the curb rises three and one quarter inches from the ground. Mr. Fein is expected to opine that the curb was defectively constructed by less than half the required height, in violation of the Administrative Code. The reports relied upon by the plaintiff were not in affidavit form, and the court was not provided with Mr. Fein’s curriculum vitae or any evidence of his expertise to support his conclusions. In any event, “expert opinion as to a legal conclusion is impermissible” Colon v. Rent-A-Center, 276 AD2d 58 (1st Dept. 2000). Counsel argues that the size of the curb is not necessarily a design issue, but rather the product of negligent maintenance and inadequate warnings. However, no proof has been submitted to support counsel’s conclusion. A property owner has “no duty to protect or warn, and a court is not precluded from granting summary judgment where a condition complained of was both open and obvious, and as a matter of law, not inherently dangerous.” Boyd v. New York City Hous. Auth., 105 AD3d 542 (1st Dept. 2013). Plaintiffs have not produced admissible evidence that is sufficient to raise any material issue of fact.Accordingly, based on the record before the Court; the applicable law; and due deliberation; it is hereby ORDERED, that the defendant’s motion for summary judgment is granted; and it is further ORDERED, that the complaint is dismissed; and it is further ORDERED that the defendant shall serve a copy of this Order with Notice of Entry upon the plaintiff within thirty (30) days of entry of this Order. This constitutes the decision and order of the Court. Dated: June 29, 2020
