Personal Injury & Tort

The First Department affirmed denial of summary judgment where conflicting expert opinions about whether a building’s heavy granite staircase caused a sidewalk crack created a triable issue of fact, and expressly declined to follow Second Department precedent requiring non-municipal defendants to establish affirmative misfeasance before being liable for a cause-and-create theory of sidewalk liability.

The First Department reversed summary judgment for a commercial building owner in a slip-and-fall case, holding that the plaintiff’s testimony about smelling detergent and seeing mop streaks after the fall raised a credibility contest that precluded summary judgment, even though the building’s porter testified he had not mopped the stairwell that day.

A divided First Department reversed the denial of summary judgment for a pharmacy that had no statutory or contractual duty to maintain an abutting sidewalk, holding that once a commercial tenant establishes it had no duty to maintain the sidewalk, the burden shifts to the plaintiff to produce evidence of causation — and proximity of a crack to the tenant’s cellar door is insufficient.