Chimilio-Ramos v. Banguera

62 A.D.3d 538, 879 N.Y.S.2d 417

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 2009
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 7, 2008, which, in an action for personal injuries allegedly sustained when plaintiff fell through an open sidewalk vault in front of a building owned by defendant-respondent building owner (defendant), granted defendant’s motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, the motion for summary judgment denied and the complaint reinstated as against defendant.

The motion court erred in granting defendant summary judgment on the ground that plaintiff “was unable to identify the cause of her accident.” Despite plaintiffs inability to remember the precise details of her fall, there is sufficient evidence to permit a reasonable inference, based on “the logic of common experience,” that either defendant or the boiler contractor working for defendant was negligent in failing to guard, barricade or warn against the open vault, and that such negligence was a proximate cause of the accident (Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743, 744-745 [1986]; see Podlaski v Long Is. Paneling Ctr. of Centereach, Inc., 58 AD3d 825, 827 [2009]). Concur— Tom, J.P., Friedman, Catterson, Moskowitz and Renwick, JJ.