You are here: / / IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT DID NOT ELIMINATE ISSUES...
,

IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT DID NOT ELIMINATE ISSUES OF FACT ABOUT WHETHER THE PLAINTIFF CAN PROVE THE CAUSE OF PLAINTIFF’S DECEDENT’S FALL, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this sidewalk slip and fall case did not eliminate triable issues of fact about whether the plaintiff can demonstrate the cause of plaintiff's decedent's fall:

“A plaintiff's inability to identify the cause of his or her fall is fatal to a cause of action to recover damages for personal injuries because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation” … . “Proximate cause may be established without direct evidence of causation by inference from the circumstances of the accident. However, mere speculation as to the cause of an accident, when there could have been many possible causes, is fatal to a cause of action” … .

Here, the defendant failed to establish, prima facie, that the cause of Estelle's fall was not identifiable. In support of its motion, the defendant submitted the deposition testimony of nonparty witness Laura Acito, who saw the plaintiff fall. While a vehicle was in front of Acito, and she was only able to see Estelle from the waist up, Acito was able to identify the exact spot where the accident occurred. Acito worked in a strip mall which was located next to the defendant's vacant lot, and she was familiar with the area where the accident occurred. Using photographs which she authenticated, Acito stated that the accident occurred in that portion of the sidewalk which was broken up and in a state of disrepair for years. Under the circumstances, the defendant failed to eliminate triable issues of fact as to whether Estelle fell due to the alleged defective condition of the sidewalk …  Since the defendant failed to meet its initial burden, the sufficiency of the plaintiff's opposition papers need not be reviewed … . Eisenstein v Block 5298, Inc., 2018 NY Slip Op 06080, Second Dept 9-19-18

NEGLIGENCE (IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT DID NOT ELIMINATE ISSUES OF FACT ABOUT WHETHER THE PLAINTIFF CAN PROVE THE CAUSE OF PLAINTIFF'S DECEDENT'S FALL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (SLIP AND FALL, IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT DID NOT ELIMINATE ISSUES OF FACT ABOUT WHETHER THE PLAINTIFF CAN PROVE THE CAUSE OF PLAINTIFF'S DECEDENT'S FALL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL  (IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT DID NOT ELIMINATE ISSUES OF FACT ABOUT WHETHER THE PLAINTIFF CAN PROVE THE CAUSE OF PLAINTIFF'S DECEDENT'S FALL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, IN THIS SIDEWALK SLIP AND FALL CASE, DEFENDANT DID NOT ELIMINATE ISSUES OF FACT ABOUT WHETHER THE PLAINTIFF CAN PROVE THE CAUSE OF PLAINTIFF'S DECEDENT'S FALL, DEFENDANT'S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

You might also like
WHEN A PARTY BRINGS A MOTION TO CHANGE VENUE IN THE COUNTY TO WHICH THE PARTY WANTS VENUE CHANGED, AS OPPOSED TO THE COUNTY WHERE THE ACTION WAS STARTED, THE PARTY MUST USE THE SPECIAL PROCEDURE IN CPLR 511 (A) AND (B), WHICH REQUIRES MAKING A DEMAND ON THE OTHER PARTY BEFORE BRINGING A MOTION; HERE THE SPECIAL PROCEDURE WAS NOT USED, THE MOTION TO CHANGE VENUE WAS MADE IN THE “WRONG COUNTY” AND SHOULD HAVE BEEN DISMISSED (SECOND DEPT).
Reassessment of Improved Property Was Not an Unconstitutional Selective Assessment
WHERE ONE OF TWO RELATED FORECLOSURE ACTIONS IS SUBJECT TO A MERITORIOUS MOTION TO DISMISS AS TIME-BARRED, IT IS AN ABUSE OF DISCRETION TO GRANT A MOTION TO CONSOLIDATE THE TIME-BARRED ACTION WITH THE TIMELY ACTION (SECOND DEPT).
THE POLICE DID NOT DEMONSTRATE A LAWFUL BASIS FOR IMPOUNDING DEFENDANT’S VEHICLE AND CONDUCTING AN INVENTORY SEARCH; DEFENDANT’S MOTION TO SUPPRESS THE SEIZED EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
THE MOTION FOR A JUDGMENT AS A MATTER OF LAW (CPLR 4401) FINDING THE NYC HOUSING AUTHORITY LIABLE FOR A BEDBUG INFESTATION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Six-Year Statute of Limitations for Reformation of Deed Exceeded, No Evidence the Exception to the Statute Applied
DEFENDANT PRESENTED SUFFICIENT SPECIFIC FACTS TO REBUT THE PRESUMPTION OF PROPER SERVICE OF THE SUMMONS AND COMPLAINT; A HEARING SHOULD HAVE BEEN HELD (SECOND DEPT). ​
THE INSURED, WHO WAS SEEKING UNINSURED MOTORIST BENEFITS, DID NOT TIMELY NOTIFY HER INSURER OF THE TRAFFIC ACCIDENT; THEREFORE THE INSURER’S PETITION TO PERMANENTLY STAY ARBITRATION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF DID NOT RAISE A QUESTION OF FACT ABOUT THE GAS COMPANY’S LIABILITY... QUESTION OF FACT WHETHER ICE WAS PRESENT ON THE SIDEWALK IN THIS SLIP AND FALL...