Napoli v Di Marco (2017 NY Slip Op 01633)

Napoli v Di Marco

2017 NY Slip Op 01633

Decided on March 2, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 2, 2017
Friedman, J.P., Andrias, Feinman, Kapnick, Gesmer, JJ.
3309 300634/14

Michelstein & Associates, PLLC, New York (Stephen J. Riegel of counsel), for appellant.

Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola (Joshua H. Stern of counsel), for respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson,

Jr., J.), entered February 2, 2016, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly granted in this action where plaintiff was injured when she tripped and fell on the sidewalk in front of defendant's home. Defendant, as a single family homeowner, could only be liable for the alleged half-inch height differential where the two sidewalk flagstones met in front of her house if she created or exacerbated the alleged hazardous condition (see Coogan v City of New York, 73 AD3d 613 [1st Dept 2010]; Administrative Code of City of NY § 7-210[b]). Here, there was no evidence in the record to indicate that defendant created the height differential. Plaintiff, at most, alleged that tar applied by defendant's husband in the joints between the sidewalk flagstones had somehow obstructed her vision of the alleged height differential. She never claimed to have tripped over the caulking that was only applied in the joint space between the sidewalk flagstones, and her assertion that the caulking had obstructed her view of the height differential in the flagstones was insufficient to raise a triable issue of fact.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 2, 2017

CLERK