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Second Department Reinstates Trip and Fall Action, due to Issue of Fact (NY)

March 10, 2017

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In <em><a href="">Kelly v Mall at Smith Haven LLC</a>.</em>, the Second Department recently discussed how a personal injury plaintiff can defeat summary judgment motions based on differing theories of how the accident occurred.
The case arises from injuries plaintiff allegedly sustained in 2010 while walking toward the entrance of Smith Haven Mall (the mall). The plaintiff alleged that a defect on the curb leading up to the entrance of the mall caused him to fall, resulting in injury. Plaintiff commenced an action against the mall and E.W. Howell Co., Inc. (Howell) and RF Paving Corp.  In 2007, Howell performed renovation work at the mall, sub-contracted with RJ Paving to construct the sidewalk where the plaintiff allegedly fell. After discovery, each defendant moved for summary judgment , arguing that the plaintiff did not identify the cause of his fall. The Supreme Court granted all three motions and dismissed the plaintiff’s complaint in its entirety.
On appeal, the Second Department held that while the complaint should have been dismissed as to Howell and RF Paving, the Supreme Court wrongly granted summary judgment for the mall. In essence, the crux of all three defendants’ arguments was that the plaintiff failed to identify the cause of his fall, and therefore failed to make out a claim for negligence. The Court pointed out that it had to view all evidence in the light most favorable to plaintiff, as the non-moving party. Here, the plaintiff testified that as he tried to step onto the curb, he felt his foot get “caught in the crack of the curb.” According to the Second Department, this testimony was sufficient to isolate the chip in the sidewalk that allegedly caused his fall.
The Second Department held that the plaintiff presented sufficient evidence to present a question of fact as to the existence of the alleged curb defect, and reinstated the complaint against the mall. However, Howell and RF Paving demonstrated their <em>prima facie</em> entitlement to judgment as a matter of law by establishing that they did not create the defect and that they had no continuing duty to maintain the sidewalk years after performing construction.  Thanks to Evan King for his contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.


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