Bivins v. Zeckendorf Realty, LP

289 A.D.2d 123, 735 N.Y.S.2d 103, 2001 N.Y. App. Div. LEXIS 12286

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 2001
• Status: Published

Opinion

Order, Supreme Court, New York County (Marcy Friedman, J.), entered on or about February 23, 2001, which, in an action for personal injuries sustained in a trip and fall in a crosswalk situated near defendants-appellants’ construction project, denied defendants-appellants’ motion for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.

We reject appellants’ argument that they are entitled to summary judgment on the basis of plaintiffs deposition testimony. The tenor of the testimony is that plaintiff could not say whether it was one of the several potholes in the crosswalk that she tripped over or an item of the debris that appellants admit, for present purposes, came from their construction project. Having identified dangerous conditions that at least in part were caused by appellants’ negligence in creating and leaving construction debris in the crosswalk, it was not plaintiffs burden to show, in the first instance, that she fell on such debris; rather, it was appellants’ burden to show, in the first instance, that such debris was not the cause of plaintiffs fall (see, Tiles v City of New York, 262 AD2d 174). No such showing was made. Concur — Nardelli, J. P., Mazzarelli, Andrias, Ellerin and Rubin, JJ.