Wade Clark Mulcahy LLP

In Adzei v. Edward Builders Inc. and ARO Holdings LLC, 2023 NY Slip Op 05580, November 8, 2023, the plaintiff was injured when he fell down a staircase owned and controlled by defendants Edward Builders, Inc., and ARO Holdings, LLC. Plaintiff testified that he fell due to cement dust on the staircase, but he could not be sure where the cement dust came from. He also testified that he tried to grab onto the handrail but there was none. At the end of discovery, the defendants moved for summary judgment arguing the plaintiff could not specify what caused his fall. The trial court granted defendants’ motion for summary judgment, and on appeal, the Second Department overturned the decision.

While the Second Dept. concluded that the plaintiff’s claim that cement dust may have contributed to his fall was speculative and insufficient to survive summary judgment alone, they overturned the trial court based on the missing handrail, concluding that there could be more than one proximate cause of an accident, which is for a jury to determine. “Even if the plaintiff  fell because of a misstep, his testimony that he reached for a railing when he fell, but there was none, created triable issues of fact as to whether a handrail was present or required and as to whether the alleged absence of a handrail was a proximate cause of the plaintiff's injuries” The fact that there was no handrail where there could have been precluded summary judgment.

The Adzei case shows that there can be more than one triable issue of fact for a jury to determine negligence against a defendant, and any summary judgment motion should attempt to disprove all possibilities, or proximate causes, of an accident in order to survive an appeal by the plaintiff.