Contractor’s Trucks Traversing over a Sidewalk Creates Issue of Fact that Defeats Motion to Dismiss.

In Cordova v Union Turnpike Dev. Corp., the plaintiff tripped and fell due to a hole in a sidewalk near an area where construction work was taking place. She sued the parties performing the construction work. The defendants were granted summary judgment by the trial court on the grounds that they did not create the alleged defect. In a short decision, the Appellate Division reversed. Notably, the court relied on the plaintiff’s claim that the hole could have been created when heavy machines and trucks traversed the subject sidewalk to gain access to the construction site. Since the defendant did not establish they did not create the hole with their equipment, they failed to meet their initial burden of establishing entitlement to summary judgment.

Special thanks to Bill Kirrane for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com.

http://www.nycourts.gov/reporter/3dseries/2010/2010_06155.htm