ABRAHAM v. EZ (2021)

Order, Supreme Court, New York County (Gerald Lebovits, J.), entered on or about June 23, 2020, which granted the motion of defendant Dutch Broadway Associates, L.L.C. (Dutch) for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion denied.

In this trip-and-fall action, plaintiff testified at his deposition that he fell on the sidewalk of a shopping center owned by Dutch, when his right foot came into contact with rolled-up carpets in front of a store, causing him to stumble, and that his other foot then got caught in an uneven crack in the sidewalk.  The court properly found that Dutch had no notice of the carpets (see Prevost v. One City Block LLC, 155 A.D.3d 531, 534, 65 N.Y.S.3d 172 [1st Dept. 2017]).

However, there are issues of fact as to whether defendant had constructive notice of the sidewalk defect, whether the defect was trivial, and whether it proximately caused plaintiff's fall.  Defendant failed to offer specific evidence as to when the sidewalk was last inspected, relying only on vague testimony concerning the manager's occasional visits to the shopping center (see Simpson v. City of New York, 126 A.D.3d 640, 640–641, 4 N.Y.S.3d 213 [1st Dept. 2015];  Guerrero v. Duane Reade, Inc., 112 A.D.3d 496, 496, 976 N.Y.S.2d 385 [1st Dept. 2013]).  Plaintiff's submission of photographs depicting the height differential in the raised sidewalk flag to be about one inch also raised an issue of fact as to whether the defect was nontrivial (see McCabe v. Avalon Bay Communities, Inc., 177 A.D.3d 487, 488, 114 N.Y.S.3d 51 [1st Dept. 2019]).  While plaintiff testified that he first tripped on the rolled-up carpets before coming into contact with the sidewalk defect, “there can be more than one proximate cause of an accident” (Nunez v. Recreation Rooms & Settlement, 229 A.D.2d 359, 360, 645 N.Y.S.2d 789 [1st Dept. 1996]).