Diaz v 1100 Wyatt LLC

Diaz v 1100 Wyatt LLC 2012 NY Slip Op 06847 Decided on October 11, 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 October 11, 2012
Andrias, J.P., Friedman, Moskowitz, Freedman, Manzanet-Daniels, JJ.
8267 305204/09

[*1]Tony Diaz, Plaintiff-Respondent,

v

1100 Wyatt LLC, Defendant-Appellant, The City of New York, Defendant.




McGaw Alventosa & Zajac, Jericho (James K. O'Sullivan of
counsel), for appellant.
Scott Baron & Associates, P.C., Howard Beach (John Burnett
of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 31, 2011, which, in an action to recover for personal injuries allegedly sustained when plaintiff tripped on a sidewalk abutting defendant-appellant's property, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

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.

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

ENTERED: OCTOBER 11, 2012

CLERK