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NEGLIGENCE Plaintiff’s Inability to Identify the Precise Sidewalk Defect Which Caused Her Fall (In a Photograph) Did Not Warrant Summary Judgment to the Defendant—Plaintiff Testified She Tripped on a Bump in the Sidewalk

The First Department determined that plaintiff’s inability to identify the precise sidewalk defect over which she tripped did not warrant granting summary judgment to the defendant. Plaintiff testified her foot struck a bump in the sidewalk but she was unable to identify the defect in a photograph of the sidewalk. Under the circumstances the plaintiff was not required to identify the particular defect which caused her fall in order to avoid summary judgment. She was able to demonstrate a “nexus” between a defect and her fall:

At her deposition, plaintiff testified that she fell because her foot hit a bump in the sidewalk. Defendants moved for summary judgment on the ground that plaintiff’s inability to identify the bump or defect in photographs shown to her at her deposition prevented her from being able to prove that her accident was proximately caused by a sidewalk defect for which they were responsible … . Under the circumstances, plaintiff’s testimony was sufficient to demonstrate a causal “nexus” between a defect in the sidewalk in front of [defendant’s] property and her fall, and she was not required to prove “precisely which particular” defect in the sidewalk caused her to fall in order to avoid summary judgment … . Kovach v PJA, LLC, 2015 NY Slip Op 03931, 1st Dept 5-7-15

 

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