Opinion
June 17, 1999.
Appeal from the Supreme Court, New York County (Richard Braun, J.).
Defendant is not entitled to summary judgment simply because plaintiff, at his deposition, was unable to say with certainty that the reason for his fall was the elevation in the sidewalk, which was observed by plaintiff after he fell and photographically documented; indeed, its existence and dangerous nature were not disputed on this motion ( compare, e.g., Leary v. North Shore Univ. Hosp., 218 A.D.2d 686). This being the case, it was not plaintiff's burden in opposing the motion to show, in the first instance, that he fell over the elevation; rather, it was defendant's burden to show, in the first instance, that the alleged sidewalk defect was not the cause of plaintiff's fall ( see, Buckle v. Buhre Ave. Foods, 232 A.D.2d 269; cf., Ingersoll v. Liberty Bank, 278 N.Y. 1, 7). No such prima facie showing having been, made, defendant is not entitled to summary judgment regardless of the sufficiency of plaintiff's opposing papers ( see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
Concur — Sullivan, J. P., Nardelli, Mazzarelli, Rubin and Andrias, JJ.