Clark v Jay Realty Corp.

Clark v Jay Realty Corp. 2012 NY Slip Op 03106 Decided on April 24, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 24, 2012
Tom, J.P., Friedman, Catterson, Acosta, Freedman, JJ.
7466 104820/09

[*1]Gloria Clark, Plaintiff-Respondent,

v

Jay Realty Corp., Defendant-Appellant, Guiding Eyes for the Blind, Inc., et al., Defendants-Respondents.




Lester Schwab Katz & Dwyer, LLP, New York (Harry
Steinberg of counsel), for appellant.
Law Offices Marius C. Wesser, P.C., New York (Marius C.
Wesser of counsel), for Gloria Clark, respondent.
Malapero & Prisco, LLP, New York (Andrew L. Klauber of
counsel), for Guiding Eyes for the Blind, Inc. and James
Gardner, respondents.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered November 28, 2011, which, to the extent appealed from, denied defendant landlord's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

The landlord failed to establish its entitlement to judgment as a matter of law in this action where plaintiff, who is legally blind, alleged that she was injured when she tripped and fell over an elevated sidewalk flag as she walked in front of the landlord's building. Although plaintiff could not state with certainty what caused her fall, she testified that she fell after her right foot hit "a raised area" and that the defect was "[a] curb-like raise." Moreover, defendant Gardner, who was walking with plaintiff at the time of the accident, testified that while he was not looking at plaintiff's feet when she tripped, he did see her fall and that she landed on the [*2]subject sidewalk flag (see Narvaez v 2914 Third Ave. Bronx, LLC, 88 AD3d 500 [2011]; Tiles v City of New York, 262 AD2d 174 [1999]).

We have considered the landlord's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 24, 2012

CLERK