Yates v. City of New York
Docket Index No. 157577/18|Appeal No. 5672|Case No. 2025-00176|
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- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02736
- Docket numbers
- Index No157577/18Appeal No5672Case No2025-00176
Appeal from denial of defendant 494 Eighth Avenue LLC's motion for summary judgment dismissing the complaint
Summary
The Appellate Division, First Department affirmed the denial of defendant 494 Eighth Avenue LLC’s summary judgment motion in a personal-injury sidewalk-trip case. Plaintiff said she tripped on an uneven sidewalk near a disassembled police barricade and testified the height differential was about one to one-and-a-half inches. The court held the defendant failed to show the alleged defect was trivial as a matter of law because the submitted photos and affidavit were inconclusive and the superintendent’s estimate was not a measured fact. Plaintiff’s testimony and possible violation of the NYC Administrative Code created questions of fact for trial.
Issues Decided
- Whether the alleged sidewalk defect was trivial as a matter of law and therefore not actionable
- Whether the defendant met its prima facie burden on summary judgment to show the defect did not present a significant risk
- Whether plaintiff's testimony and evidence raised triable issues of fact about the defect's size and detectability
Court's Reasoning
The court applied the governing trivial-defect standard and found the defendant's evidence insufficient to establish triviality as a matter of law. Photographs without measurements and an unmeasured estimate by the superintendent were inconclusive, while plaintiff testified the differential was about one to one-and-a-half inches. That testimony, combined with the possibility the condition violated NYC Administrative Code § 19-152 and that the defect may have been hard to see amid heavy pedestrian traffic, created factual disputes precluding summary judgment.
Authorities Cited
- Hutchinson v Sheridan Hill House Corp.26 NY3d 66 (2015)
- Trinidad v Catsimatidis190 AD3d 444 (1st Dept 2021)
- Administrative Code of City of New York § 19-152
Parties
- Plaintiff
- Anne K. Yates
- Defendant
- The City of New York
- Defendant
- 494 Eighth Avenue LLC
- Attorney
- Joseph J. Ferrini (Clausen Miller P.C.)
- Attorney
- Jason Krakower (Raphaelson & Levine Law Firm, P.C.)
- Judge
- Hasa A. Kingo
Key Dates
- Incident date
- 2017-12-29
- Trial court order (denial of summary judgment)
- 2024-11-27
- Appellate decision
- 2026-04-30
What You Should Do Next
- 1
Prepare for trial discovery and expert inspection
Defendant and plaintiff should gather measured surveys, repair records, and retain experts to measure and testify about the sidewalk condition and the hazard's significance.
- 2
Consider settlement discussions
Given unresolved factual issues, both parties may evaluate settlement to avoid the cost and uncertainty of trial; counsel should exchange valuations and mediation options.
- 3
Preserve and document evidence
Take precise measurements, contemporaneous photographs with scales, maintenance logs, and witness statements to strengthen each side's position for trial.
Frequently Asked Questions
- What did the court decide?
- The appellate court upheld the trial court's denial of the landlord's summary judgment motion, meaning the case will proceed because there are factual disputes about whether the sidewalk defect was trivial.
- Who is affected by this decision?
- The parties are the injured plaintiff, Anne Yates, and defendant 494 Eighth Avenue LLC; the case affects whether the defendant can be held liable for the sidewalk condition.
- What is the main reason the defendant lost on summary judgment?
- The defendant's photos and an unmeasured superintendent estimate did not conclusively show the defect was insignificant, while plaintiff's testimony claimed a larger differential and possible code violation, creating triable issues of fact.
- What happens next in the case?
- Because summary judgment was denied, the case will continue toward trial unless the parties resolve it earlier by settlement or other procedural disposition.
- Can the defendant appeal this decision further?
- Further appeal to a higher court (Court of Appeals) is possible but typically requires permission; appellate review at this stage affirmed the trial court, so the usual path is to proceed to trial or seek leave to appeal.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Yates v City of New York - 2026 NY Slip Op 02736 Yates v City of New York 2026 NY Slip Op 02736 April 30, 2026 Appellate Division, First Department Anne K. Yates, Plaintiff-Respondent, v The City of New York, et al., Defendants, 494 Eighth Avenue LLC, Defendant-Appellant. Decided and Entered: April 30, 2026 Index No. 157577/18|Appeal No. 5672|Case No. 2025-00176| Before: Moulton, J.P., Mendez, Rodriguez, Rosado, Hagler, JJ. Clausen Miller P.C., New York (Joseph J. Ferrini of counsel), for appellant. Raphaelson & Levine Law Firm, P.C., New York (Jason Krakower of counsel), for respondent. Order, Supreme Court, New York County (Hasa A. Kingo, J.), entered November 27, 2024, which, to the extent appealed from as limited by the briefs, denied defendant 494 Eighth Avenue LLC's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs. Plaintiff alleges that on December 29, 2017, at around 2:30 p.m., she was injured when she tripped on the sidewalk in front of 494 Eighth Avenue, a building owned by defendant, and landed on a disassembled wooden police barricade on the sidewalk. Plaintiff testified at her 50-h hearing and at her deposition that she tripped and fell on an uneven portion of the sidewalk where there was an "imbalance" higher than the surrounding area by about an inch or an inch and a half. Supreme Court properly found that defendant was not entitled to judgment as a matter of law on the basis that the alleged defect was trivial, as defendant failed to make a prima facie showing that the defect was, under the circumstances, physically insignificant and that the characteristics of the defect did not increase the risks that it posed ( see Hutchinson v Sheridan Hill House Corp. , 26 NY3d 66, 79 [2015]; Trinidad v Catsimatidis , 190 AD3d 444, 444-445 [1st Dept 2021]). The evidence that defendant submitted in support of its motion, including photographs of the sidewalk where plaintiff was allegedly injured and the affidavit of the superintendent of defendant's building, are inconclusive and, therefore, insufficient to demonstrate that the defect was trivial as a matter of law and, thus, not actionable ( see Trinidad , 190 AD3d at 445; Sahni v Kitridge Realty Co., Inc. , 114 AD3d 837, 838 [2d Dept 2014]; see also Trincere v County of Suffolk , 90 NY2d 976 [1997]). The photographs that defendant submitted — which, notably, do not depict any device measuring the defect to be a certain height ( cf. McGrane-Mungo v Dag Hammarskjold Tower, 242 AD3d 458, 458 [1st Dept 2025]) — do not unequivocally demonstrate that the defect was trivial as a matter of law, as "its size is not discernable and the photos appear to show that the defect has an edge, which could constitute a tripping hazard" ( Munasca v Morrison Mgt. LLC , 111 AD3d 564, 564 [1st Dept 2013]; see Abreu v New York City Hous. Auth. , 61 AD3d 420 [1st Dept 2009]). There is also a lack of evidence demonstrating the dimensions of the defect at the time of plaintiff's trip and fall ( see Munasca , 111 AD3d at 564; Valentin v Columbia Univ. , 89 AD3d 502, 503 [1st Dept 2011]). Defendant's reliance on the affidavit of the superintendent asserting that the defect was less than one half inch in depth is insufficient to satisfy its prima facie burden, as his assertion was at best an estimate of the size of the defect and not based on any actual measurement ( see Munasca , 111 AD3d at 564; cf. Vazquez v JRG Realty Corp. , 81 AD3d 555 [1st Dept 2011]). In any event, plaintiff testified that the height differential was approximately one to one and half inches — which, if true, would be a violation Administrative Code of City of NY § 19-152 — thereby raising an issue of fact ( see Trinidad , 190 AD3d at 445). While such a differential "is not per se non-trivial, and therefore actionable as a matter of law, violation of Administrative Code § 19-152 is one factor to consider when deciding the issue of triviality" ( id. ). Furthermore, plaintiff's testimony suggesting that, because she was looking "straight ahead to . . . find a clear area to get around a crowd of people on the sidewalk" at the time of her trip and fall, it was difficult to detect the defect further raises an issue of fact ( see id. ; Argenio v Metropolitan Transp. Auth. , 277 AD2d 165, 166 [1st Dept 2000]). Notably, the accident occurred during the holiday season on a heavily-traveled area of Eighth Avenue, between Penn Station and Time Square ( see Argenio , 277 AD3d at 166). Defendant's arguments as to purported inconsistencies in plaintiff's medical records and statements that she made after the trip and fall as to what caused the accident, whether it was the defect in the sidewalk or a police barricade, are unavailing ( see S.J. Capelin Assoc. v Globe Mfg. Corp. , 34 NY2d 338, 341 [1974]; Glick & Dolleck v Tri-Pac Export Corp. , 22 NY2d 439, 441 [1968]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 30, 2026