Summary
affirming denial of defendant's motion for summary judgment where although legally blind plaintiff "could not state with certainty what caused her fall, she testified that she fell after her right foot hit 'a raised area' and that the defect was ' curb-like raise'"
Summary of this case from Nikcevich v. Town Sports Int'l, Inc.Opinion
2012-04-24
Gloria CLARK, Plaintiff–Respondent, v. JAY REALTY CORP., Defendant–Appellant,Guiding Eyes for the Blind, Inc., et al., Defendants–Respondents.
Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for appellant. Law Offices Marius C. Wesser, P.C., New York (Marius C. Wesser of counsel), for Gloria Clark, respondent.
Lester Schwab Katz & Dwyer, LLP, New York (Harry Steinberg of counsel), for appellant. Law Offices Marius C. Wesser, P.C., New York (Marius C. Wesser of counsel), for Gloria Clark, respondent.
Malapero & Prisco, LLP, New York (Andrew L. Klauber of counsel), for Guiding Eyes for the Blind, Inc. and James Gardner, respondents.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered November 28, 2011, which, to the extent appealed from, denied defendant landlord's motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.
The landlord failed to establish its entitlement to judgment as a matter of law in this action where plaintiff, who is legally blind, alleged that she was injured when she tripped and fell over an elevated sidewalk flag as she walked in front of the landlord's building. Although plaintiff could not state with certainty what caused her fall, she testified that she fell after her right foot hit “a raised area” and that the defect was “[a] curb-like raise.” Moreover, defendant Gardner, who was walking with plaintiff at the time of the accident, testified that while he was not looking at plaintiff's feet when she tripped, he did see her fall and that she landed on the subject sidewalk flag ( see Narvaez v. 2914 Third Ave. Bronx, LLC, 88 A.D.3d 500, 930 N.Y.S.2d 561 [2011]; Tiles v. City of New York, 262 A.D.2d 174, 692 N.Y.S.2d 326 [1999] ).
We have considered the landlord's remaining contentions and find them unavailing.