DECISION & ORDER In a negligence action demanding damages for personal injuries plaintiff allegedly sustained as a result of a trip-and-fall accident on a sidewalk abutting defendant’s property, defendant seeks summary judgment dismissing the complaint.1 For the reasons that follow, the motion is denied.On the morning of September 15, 2011, plaintiff and her niece were walking on a sidewalk abutting defendant’s property (plaintiff’s EBT at 11-13, 15). As she was walking on the sidewalk, plaintiff tripped and fell when her “foot somehow turned or twisted” (id. at 13). Plaintiff did not observe a defective sidewalk condition in the area of her accident before it happened (id. at 55-57, 61). After plaintiff fell, however, she observed two-to three-inch “holes” in the sidewalk where she tripped (id. at 58; see id. at 54-57, 61-62, 70). Apparently, plaintiff did not make that observation until approximately one hour after the accident; she observed the allegedly defective condition as she was being placed into an ambulance for transportation to a local emergency room (id. at 15-16; see id. at 57-58, 61-62).Plaintiff commenced this action against defendant, asserting that defendant negligently failed to maintain the sidewalk in a reasonably safe condition and that such negligence proximately caused her injuries. Issue was joined, disclosure was completed, and a note of issue was filed.Defendant seeks summary judgment dismissing the complaint for the following reasons: (1) plaintiff fell because she experienced a sudden illness, not because of any defective condition; (2) plaintiff could not sufficiently identify the defective condition that allegedly caused her accident; (3) no actionable defective condition existed in the area of the accident at the time it occurred; (4) recovery for any allegedly defective condition is barred by the “open and obvious condition” doctrine; and (5) defendant neither created nor had notice of any defective condition. In support of its motion, defendant submits, among other things, plaintiff’s deposition testimony, the deposition testimony of one of its public safety officers (Romano), an affidavit from its claims representative (Rodriguez), medical records related to treatment received by plaintiff, and paperwork from defendant’s Department of Public Safety.Plaintiff opposes the motion, arguing that defendant failed to make a prima facie showing of entitlement to judgment as a matter of law.Defendant’s motion must be denied.A triable issue of fact exists as to whether a causal link reasonably may be drawn between plaintiff’s injuries and the allegedly defective condition. Plaintiff asserts that her injuries were the result of a trip-and-fall accident occasioned by a sidewalk defect. Defendant contends that plaintiff experienced a sudden illness that caused her to fall. Defendant adduced evidence that plaintiff may have made one or more admissions to the public safety officers who responded to the accident scene that suggested that plaintiff fell because she felt faint or weak.2 Such admission evidence supports defendant’s contention (see Reed v. McCord, 160 NY 330, 341 [1899] ["In a civil action the admissions by a party of any fact material to the issue are always competent evidence against him [or her], wherever, whenever, or to whomsoever made.”]). However, plaintiff testified at her deposition that, within approximately one hour of the accident, she observed two-to three-inch holes in the sidewalk where she tripped. Moreover, plaintiff testified that she felt dizzy after she fell and struck the sidewalk (plaintiff’s EBT at 14, 45). Viewing the evidence in the light most favorable to plaintiff and avoiding the resolution of credibility questions (see Vega v. Restani Construction Corp., 18 NY3d 499 [2012]), a triable issue of fact exists as to whether the allegedly defective condition was a proximate cause of plaintiff’s injuries (see generally Hain v. Jamison, 28 NY3d 524, 529 [2016] ["Typically, the question of whether a particular act of negligence is a substantial cause of the plaintiff's injuries is one to be made by the factfinder…."]).Defendant’s argument that summary judgment is warranted in its favor because plaintiff is unable to identify sufficiently the defect that caused her fall is without merit. “[A] defendant [in a premises liability action] is entitled to summary judgment as a matter of law 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 AD3d 452, 454 [1st Dept 2011]). Here, as outlined above, during her deposition plaintiff identified the allegedly defective condition that she claims caused her to trip and fall: two-to three-inch holes in the sidewalk. Whether that testimony is credible is not an appropriate inquiry at the summary-judgment stage (see Vega v. Restani Construction Corp., supra). Moreover, that plaintiff identified the allegedly defective condition approximately one hour after the accident does not render her testimony speculative (see Tomaino v. 209 East 84th St. Corp., 72 AD3d 460 [1st Dept 2010]). As the First Department stated in Taveras v. 1149 Webster Realty Corp.: “[p]laintiff’s testimony distinguishes this case from the cases…where this Court determined that defendants had sustained their burden of establishing their entitlement to summary judgment as a matter of law because a jury would have to engage in impermissible speculation to determine the cause of the accident” (134 AD3d 495, 497 [2015], affd 28 NY3d 958 [2016]).To the extent that defendant contends that, as a matter of law, no actionable defect existed on the sidewalk, that contention is without merit. The evidence regarding the nature and appearance of the allegedly defective condition (which evidence is provided by plaintiff’s deposition testimony) does not permit a finding that, as a matter of law, the condition is not actionable (see Hutchinson v. Sheridan Hill House Corp., 26 NY3d 66 [2015]). Notably, no photograph or video depicting the allegedly defective condition has been submitted in connection with this motion.Defendant’s contention that summary judgment is warranted on the ground that the allegedly defective condition was open and obvious fares no better.3 The question of whether a particular condition was open and obvious is fact intensive (see Powers v. 31 E. 31 LLC, 123 AD3d 421 [1st Dept 2014]), and the evidence of the nature and appearance of the allegedly defective condition is, at this juncture, limited. Therefore, defendant failed to demonstrate that, as a matter of law, the allegedly defective condition was readily observable by plaintiff employing the reasonable use of her senses (see Powers v. 31 E. 31 LLC, supra). Moreover, defendant failed to demonstrate that, as a matter of law, the allegedly defective condition was not inherently dangerous (cf. Stolzman v. City of New York, 146 AD3d 531 [1st Dept 2017]).Defendant failed to make a prima facie showing that it lacked constructive notice of the allegedly defective condition (see Shehata v. City of New York, 128 AD3d 944, 946 [2d Dept 2015]). The deposition testimony of Officer Romano, the affidavit of defendant’s claim representative (Rodriguez) and the limited construction logs submitted with that affidavit do not address, let alone establish, that, as a matter of law, defendant lacked constructive notice of the allegedly defective condition. And plaintiff’s deposition testimony, upon which defendant relies in seeking summary judgment, suggests that the allegedly defective condition–holes in the sidewalk that were two-to three-inches deep–existed for a sufficient length of time to permit defendant to discover and remedy the condition.Lastly, the court notes that defendant’s challenges to the veracity of plaintiff’s deposition testimony call for credibility determinations, which the court cannot make on this summary judgment motion (see Vega v. Restani Construction Corp., supra). This is not a situation where plaintiff’s deposition testimony presents a narrative that is physically impossible or contrary to common experience (cf. Moorhouse v. The Standard, New York, 124 AD3d 1, 9 [1st Dept 2016]).Accordingly, it is hereby ordered that the motion is denied.This constitutes the decision and order of the court.Date: July 16, 2018Bronx, NY
