CANZONERI v. CITY OF NEW YORK (2021)

Appeal from order, Supreme Court, New York County (Nancy M. Bannon, J.), entered October 31, 2019, which, to the extent appealed from, granted those branches of defendant/third-party plaintiff Dart Mechnical Corp.'s, defendant/second third-party plaintiff Tully Construction Co. Inc.'s (Tully), second third-party defendant Bovis Lend Lease, LMB, Inc.'s (Bovis), and defendants City of New York and New York City Department of Sanitation's separate motions, and that branch of defendant A & F Fire Protection Co., Inc.'s and third-party defendant Advanced Automatic Sprinkler Company Inc.'s (collectively, defendants) cross motion, for summary judgment dismissing the complaint, deemed an appeal from the judgment, same court and Justice, entered December 3, 2019, as amended February 18, 2020 (CPLR 5501[c], 5520[c]), dismissing the complaint, and, as so considered, said judgment unanimously reversed, on the law, without costs, the judgment vacated, and the motions and cross motion denied, and the matter remanded to Supreme Court to determine the issues that were raised but left unaddressed by Supreme Court in its order.

“It is well settled that a defendant is entitled to summary judgment ․ when a plaintiff provides testimony that he or she is unable to identify the defect that caused his or her injury” (Siegel v. City of New York, 86 A.D.3d 452, 454, 928 N.Y.S.2d 1 [1st Dept. 2011];  see Ash v. City of New York, 109 A.D.3d 854, 855, 972 N.Y.S.2d 594 [2d Dept. 2013];  see also Taveras v. 1149 Webster Realty Corp., 134 A.D.3d 495, 496, 23 N.Y.S.3d 162 [1st Dept. 2015], affd 28 N.Y.3d 958, 38 N.Y.S.3d 516, 60 N.E.3d 411 [2016]).  However, “[a] plaintiff's inability to testify exactly as to how an accident occurred does not require dismissal where negligence and causation can be established with circumstantial evidence” (Patrikis v. Arniotis, 129 A.D.3d 928, 930, 12 N.Y.S.3d 174 [2d Dept. 2015]).  Here, plaintiff's testimony, in context, is that he fell because he stepped on debris strewn about the area of his accident, which is corroborated by the C–3 workers' compensation claim form that he completed shortly after the accident as well as Tully's and Bovis's incident reports.  A coworker also testified that a photograph depicting the location of plaintiff's accident showed garbage and debris “[e]verywhere.”  Thus, it is not “just as likely” in this case that plaintiff's accident was “caused by some other factor, such as a misstep or loss of balance,” nor would any verdict in plaintiff's favor on causation be based “upon sheer speculation” (Scivoletti v. New York Mercantile Exch., Inc., 38 A.D.3d 326, 327, 832 N.Y.S.2d 34 [1st Dept. 2007] [citation and internal quotation marks omitted], lv denied 9 N.Y.3d 802, 840 N.Y.S.2d 567, 872 N.E.2d 253 [2007];  see Ash, 109 A.D.3d at 855, 972 N.Y.S.2d 594).  Supreme Court therefore should have denied defendants' motions and cross motion for summary judgment dismissing the complaint (see Caudill v. Rochester Inst. of Tech., 125 A.D.3d 1392, 1394, 4 N.Y.S.3d 408 [4th Dept. 2015];  Baker v. International Paper Co., 226 A.D.2d 1007, 1007–1008, 641 N.Y.S.2d 206 [3d Dept. 1996]).