DAVIS v. M & T Pretzel, Inc., et al., Defendants-Appellants. (2001)

Order, Supreme Court, New York County (Kibbie Payne, J.), entered May 24, 2000, which denied defendants-appellants' motion for summary judgment dismissing the complaint and all cross-claims, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed.   The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint and all cross-claims as against them.

In this action, plaintiff Barbara Davis alleges that she was injured when she tripped over a piece of metal signpost located in a grassy area abutting a paved footpath in Central Park. According to plaintiff, she left the footpath because appellants, who are vendors, had positioned a pushcart in the footpath.   Supreme Court denied appellants' motion for summary judgment, finding that there was a question of fact as to whether the appellants created an unreasonably dangerous condition.   We disagree.

 Although the pushcart occupied a portion of the paved footpath, as conceded by plaintiff, neither the placement of the pushcart nor the presence of other pedestrians precluded her from proceeding on the footpath.   Accordingly, plaintiff failed to establish that appellants created a dangerous condition (see, Baum v. City of New York, 270 A.D.2d 109, 704 N.Y.S.2d 476;  Fleischer v. White Rose Food Corp., 152 A.D.2d 489, 543 N.Y.S.2d 456).   Moreover, while the placement of the pushcart may have furnished the occasion upon which plaintiff was injured, it was not a legal cause of the accident (see, Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666;  Ventricelli v. Kinney System Rent A Car, Inc., 45 N.Y.2d 950, 411 N.Y.S.2d 555, 383 N.E.2d 1149).   Finally, we note that the municipal defendants did not oppose appellants' motion for summary judgment.