Diaz v. 1100 Wyatt LLC

Oct 11, 2012
Versions:99 A.D.3d 532
951 N.Y.2d 869

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 AD2d 174 [1st Dept 1999]; see also Clark v Jay Realty Corp., 94 AD3d 635 [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. Concur—Andrias, J.P., Friedman, Moskowitz, Freedman and Manzanet-Daniels, JJ.