SCHULMAN v. Exxon Mobil Corporation also known as Mobil et al., Defendants. (2025)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about May 1, 2024, which, to the extent appealed from as limited by the briefs, denied the motion of third-party defendant Service Station Vending Equipment, Inc. (SSVE) for summary judgment dismissing the third-party complaint and any cross-claims as against it, unanimously affirmed, without costs.

On its motion, SSVE failed to establish prima facie that it did not launch a force or instrument of harm by placing a service station's air pump hose in a location adjacent to a sidewalk so that the hose could present a tripping hazard (see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [2002];  see also Brown v. Garda CL Atl., Inc., 150 A.D.3d 542, 543, 55 N.Y.S.3d 26 [1st Dept. 2017]).  SSVE's witness testified that the air pump hose's location was determined by both SSVE and the service station that owned the property.  Similarly, the service station's owner testified that the decision was either solely SSVE's or was a mutual decision.

While SSVE argues that plaintiff offers only speculation about the cause of his fall, plaintiff's testimony that he “remember[ed] getting ensnarled [and] tangled,” identification of the hose as belonging to the air pump, and the photos of the hose and its placement provides “sufficient facts and circumstances from which causation may be reasonably inferred” and presents an issue of fact (Haibi v. 790 Riverside Dr. Owners, Inc., 156 A.D.3d 144, 147, 64 N.Y.S.3d 22 [1st Dept. 2017];  see Mandel v. 340 Owners Corp., 189 A.D.3d 483, 484, 137 N.Y.S.3d 342 [1st Dept. 2020]).