CRANE v. BOMBAY (2013)

Order, Supreme Court, New York County (Judith J. Gische, J.), entered October 2, 2012, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant restaurant failed to establish its entitlement to judgment as a matter of law in this action where plaintiff Elaine Crane alleges that she was injured when she tripped and fell over a bicycle that was chained to scaffolding on the sidewalk near the restaurant. Defendant failed to show that it did not own or use the bicycle over which plaintiff fell. Defendant's manager testified that the restaurant employed three delivery people, one who used a moped, and another who parked his bicycle around the corner. Defendant, however, did not produce evidence concerning where the third delivery person parked his bicycle or whether that person was working on the day of the accident. Furthermore, the record shows that the manager had no first-hand knowledge of where the bicycles were parked that day (see JMD Holding Corp. v. Congress Fin. Corp., 4 NY3d 373, 384–385 [2005] ).