Background
Mariam Tollefsen tripped and fell on a sidewalk crack immediately adjacent to a ventilation grate in the sidewalk abutting defendant’s East 53rd Street premises in Manhattan. The City of New York owned and was responsible for maintaining the ventilation grate. Tollefsen sued the building owner, arguing it caused or created the crack. Defendant moved for summary judgment, attaching an expert engineer’s affidavit concluding that the crack was caused by general deterioration — a maintenance issue unrelated to the building’s structure. Tollefsen’s expert architect countered that the cause was the building’s heavy granite and masonry exterior staircase, which was the sole frontal egress of the premises — too heavy for the sidewalk, leading to structural subsidence that created the crack. Supreme Court denied summary judgment, finding conflicting expert opinions. Defendant appealed.
The Court’s Holding
The First Department affirmed. The court held that where competing expert reports offer mutually exclusive structural explanations for a sidewalk defect — deterioration versus structural overloading by the building’s staircase — the dispute presents a quintessential credibility and factual contest that must be resolved by a jury, not a court. Courts cannot credit one expert over another on a summary judgment motion when both have presented rational, professionally supported opinions.
The court also addressed and rejected two additional arguments raised by defendant. First, defendant contended that the cause-and-create theory of liability was raised sua sponte by Supreme Court. The court disagreed: although plaintiff’s papers conflated the cause-and-create issue with a special-use theory, it was clear that both theories were in play, and defendant itself addressed the cause-and-create issue in its reply papers by attaching an expert affidavit on the question.
Second — and more broadly significant — defendant argued that to survive summary judgment on a cause-and-create theory, plaintiff was required to show that the defendant committed an affirmative act of misfeasance on the sidewalk. The court explicitly declined to apply this rule, which exists in the context of municipal liability for defective conditions but which the Second Department has extended to non-municipal defendants. The First Department refused to follow those Second Department precedents, reaffirming a divergence on this issue between the two departments.
Key Takeaways
- When a sidewalk-defect plaintiff and defendant each submit expert opinions with mutually exclusive structural explanations for the defect, summary judgment is precluded — the factual and credibility dispute belongs to the jury.
- In the First Department, a property owner can be liable for a sidewalk defect under a cause-and-create theory without proof of an affirmative act of misfeasance — the structural characteristics of the building itself (here, a heavy staircase) can give rise to liability if expert evidence supports that connection.
- The First Department expressly declined to follow Second Department authority applying the misfeasance requirement to non-municipal defendants, creating a clear inter-departmental split on this point.
- A plaintiff pursuing a cause-and-create theory should obtain a structural expert early in litigation; expert discovery is the key battleground, and the absence of expert support — as demonstrated in Fuentes v. Parkchester decided the same day — can be fatal.
Why It Matters
Read alongside Fuentes v. Parkchester S. Condominium (also decided June 23, 2026), this decision illustrates the pivotal role of expert evidence in sidewalk-defect litigation. In Fuentes, the commercial tenant won because the plaintiff had no expert linking the cellar door to the crack. In Tollefsen, the building owner lost because the plaintiff had an architect who drew that structural connection. The quality and specificity of expert opinion — not the surface facts of proximity — is now the decisive variable in First Department sidewalk cases involving a cause-and-create theory. For property owners in Manhattan: if your building has any heavy structural appurtenance near the sidewalk, engage a structural engineer early to document the absence of overloading effects on the pavement — both defensively and to support any summary judgment motion if suit is filed.