Summary
affirming denial of defendant's motion for summary judgment dismissing the complaint where plaintiff testified that he tripped on a crack or hole in the sidewalk and "did not see the crack until he was shown a picture of the area, but he felt it with his foot when he fell"
Summary of this case from Nikcevich v. Town Sports Int'l, Inc.Opinion
2012-10-11
Tony DIAZ, Plaintiff–Respondent, v. 1100 WYATT LLC, Defendant–Appellant, The City of New York, Defendant.
McGaw Alventosa & Zajac, Jericho (James K. O'Sullivan of counsel), for appellant. Scott Baron & Associates, P.C., Howard Beach (John Burnett of counsel), for respondent.
McGaw Alventosa & Zajac, Jericho (James K. O'Sullivan of counsel), for appellant. Scott Baron & Associates, P.C., Howard Beach (John Burnett of counsel), for respondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 31, 2011, which, in an action to recover for personal injuries allegedly sustained when plaintiff tripped on a sidewalk abutting defendant-appellant's property, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff testified at his deposition that he tripped in front of defendant's premises when his foot went into a crack or hole in the sidewalk. He did not see the crack until he was shown a picture of the area, but he felt it with his foot when he fell. Despite never seeing the crack or hole at the time of the accident, plaintiff attributed his fall to that condition. Thus, defendant did not sustain its burden of demonstrating, in the first instance, that the alleged sidewalk defect was not the cause of plaintiff's fall ( see Tiles v. City of New York, 262 A.D.2d 174, 692 N.Y.S.2d 326 [1st Dept. 1999];see also Clark v. Jay Realty Corp., 94 A.D.3d 635, 942 N.Y.S.2d 355 [1st Dept. 2012] ).
Even if defendant met its burden, plaintiff raised an issue of fact by submitting, among other things, the deposition testimony of defendant's employee, who identified the area of the fall from a photograph and testified that the crack shown in the photograph was present on the day of the accident.