Opinion
15034, 103892/11
05-07-2015
Maryanne KOVACH, Plaintiff–Appellant, v. PJA, LLC, et al., Defendants–Respondents.
Law Office of M. Douglas Haywoode, Brooklyn (M. Douglas Haywoode of counsel), for appellant. Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokulsingh of counsel), for PJA, LLC, respondent. Russo & Toner, LLP, New York (Mitchell A. Greene of counsel), for New York City Hardware & Supplies, Inc., respondent.
Law Office of M. Douglas Haywoode, Brooklyn (M. Douglas Haywoode of counsel), for appellant.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokulsingh of counsel), for PJA, LLC, respondent.
Russo & Toner, LLP, New York (Mitchell A. Greene of counsel), for New York City Hardware & Supplies, Inc., respondent.
MAZZARELLI, J.P., RENWICK, MANZANET–DANIELS, CLARK, JJ.
Opinion Order, Supreme Court, New York County (Shlomo Hagler, J.), entered February 26, 2014, which granted defendants' motions for summary judgment and denied plaintiff's cross motion for summary judgment, unanimously modified, on the law, to deny defendants' motions, and otherwise affirmed, without costs.
Plaintiff alleges that she fell and broke her nose when she tripped over a raised sidewalk in front of the hardware store operated by defendant New York City Hardware & Supplies, Inc., which is in a building owned by defendant PJA. At her deposition, plaintiff testified that she fell because her foot hit a bump in the sidewalk. Defendants moved for summary judgment on the ground that plaintiff's inability to identify the bump or defect in photographs shown to her at her deposition prevented her from being able to prove that her accident was proximately caused by a sidewalk defect for which they were responsible (see Siegel v. City of New York, 86 A.D.3d 452, 928 N.Y.S.2d 1 [1st Dept.2011] ). Under the circumstances, plaintiff's testimony was sufficient to demonstrate a causal “nexus” between a defect in the sidewalk in front of PJA's property and her fall, and she was not required to prove “precisely which particular” defect in the sidewalk caused her to fall in order to avoid summary judgment (Cherry v. Daytop Vil., Inc., 41 A.D.3d 130, 131, 837 N.Y.S.2d 109 [1st Dept.2007] ; see also Figueroa v. City of New York, 126 A.D.3d 438, 5 N.Y.S.3d 62 [1st Dept.2015] ).
Defendant New York City Hardware also presented an employee's affidavit in support of its position that plaintiff fell in front of the adjacent building where the sidewalk was raised near a manhole cover. However, the affidavit is contradicted by plaintiff's testimony that she fell in front of the hardware store and that she did not recall a manhole cover.
We note that, in opposition to the motions, plaintiff submitted a police-aided report that stated that her accident occurred in front of the hardware store and involved an uneven sidewalk that was raised 1 1/4 inch. Although hearsay, the police report may be considered, together with the admissible evidence of plaintiff's deposition testimony concerning the cause of her accident, in opposition to the motions for summary judgment (see Jara v. Salinas–Ramirez, 65 A.D.3d 933, 885 N.Y.S.2d 286 [1st Dept.2009] ; Zimbler v. Resnick 72nd St. Assoc., 79 A.D.3d 620, 914 N.Y.S.2d 41 [1st Dept.2010] ). Plaintiff's evidence, however, was insufficient to warrant the grant of partial summary judgment in her favor since issues of fact exist.