Practice point: In support of its motion to dismiss, defendant submitted a transcript of the injured plaintiff's deposition testimony and argued that she was unable to identify the cause of her fall. However, at deposition, the injured plaintiff, with the aid of accident scene photographs, identified the uneven portion of the sidewalk abutting the liquor storefront that caused her to trip and fall. So, the Appellate Division determined that defendant failed to make a prima facie showing that the sidewalk was not in a hazardous condition and that the injured plaintiff's fall was not proximately caused by its negligence in failing to remedy the defect.
As defendant did not establish its entitlement to judgment as a matter of law, there was no need to review the sufficiency of the plaintiffs' opposition papers.
Student note: A plaintiff's inability to identify the cause of his or her fall is fatal to the cause of action.
Case: Alayev v. Juster Assoc., LLC, NY Slip Op 08309 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: A CPLR 4404(a) motion.
