In the Borough of Churches, Court grants summary judgment to defendant church where sidewalk with defect abutted next-door church

Jeanette Martinez v New York Metro District of the United Pentecostal Church International, Inc., et al., ___ A.D.3d ___ (2nd Dep't Nov. 4, 2020)

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The Appellate Division, Second Department, reversed a Brooklyn Court's decision and granted summary judgment to a defendant church, finding it had met its burden under the Sidewalk Law, without submitting a metes and bounds description of the property.

Plaintiff brought an action against two churches after she allegedly tripped on a hole in a sidewalk, fell and was injured. The two churches are situated side by side on a Brooklyn street with a sidewalk running in front of both. Plaintiff claimed that one, or both, of the defendant churches owed her a duty of care under New York's Sidewalk Law (Administrative Code of the City of New York sec 7-210), which requires that property owners maintain the sidewalks abutting their premises. Plaintiff could identify a hole in the sidewalk where she allegedly fell. The Sidewalk Law only applies to the owner whose property abuts the sidewalk that has a defect. Consequently, the issue was whether the hole was located in front of one church or the other.

Photographs showed the hole in the sidewalk, which plaintiff identified as the defect at issue. The testimony about the hole was clear. Depositions of the church's Senior Pastor, a volunteer at the other church, and the plaintiff located the hole in front of the adjacent church. Plaintiff identified the church in front of which she fell as the church "with the red doors and exterior stairwell" in the center of the photograph. The Senior Pastor testified that the hole Plaintiff tripped over is located entirely in front of the adjacent church; that the hole was present there since he was appointed to his position in 1996; that his church replaced the sidewalk in front of the church in accordance with their duty to maintain their sidewalk in a reasonably safe condition; and that, after the date of the accident, the adjacent church filled the hole with cement. The volunteer janitor of the adjacent church testified that the church building with the red doors is the adjacent church and gave its address. He testified that he is responsible for maintaining the sidewalk outside the adjacent church; that the subject hole, into which Plaintiff allegedly stepped at the time of her fall, is located on the sidewalk in front of the adjacent church; and that he filled the hole with cement after the date of the incident. In sum, the church's position was supported by photos, admissions of the plaintiff and a third-party, and the sworn testimony of a man of the cloth.

Yet the Supreme Court, Kings County, still denied the church's motion for summary judgment upon this record, finding that it had provided insufficient evidence to meet its burden. Despite the photographs and testimony, the Court said, the defendant church failed to provide documentary evidence "such as a survey with metes and bounds description of the subject property, reflecting that the sidewalk flag or flags that are immediately adjacent to the property line between both properties at issue were in fact located wholly within the property owned and operated" by the adjacent church. Further, the Court found, the church had not provided evidence that it had not caused or created the alleged condition at issue. The church appealed.

The Appellate Division, Second Department, unanimously reversed. The church "established that the portion of the sidewalk containing the hole which allegedly caused the plaintiff to trip and fall did not abut their property. They further established that they maintained their property in a reasonably safe condition and that the condition of their property was not a proximate cause of the plaintiff's accident. Therefore, the [church] established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. In opposition, the plaintiff failed to raise a triable issue of fact."

AGF&J partner Steven DiSiervi briefed and argued the appeal, with assistance from associate James Brown.


Steven DiSiervi

Practice Areas

Premises Liability