In Young v Associated Blind Hous Dev. Fund Corp., plaintiff sued for personal injuries following a trip and fall on a defective sidewalk. Plaintiff claimed that a sidewalk shed narrowed the plaintiff’s path and led her straight into a sidewalk defect. The subject of the appeal was the duty of a contractor related to a construction site.
Procida Construction contracted with the owner to repair the sidewalk. Notably, their contractual duties did not arise until after the construction project was completed and the sidewalk bridge was removed.
Procida was denied summary judgment in Bronx County Supreme Court despite irrefutable evidence that the sidewalk bridge was in place on the date of accident. Indeed, its placement formed the very basis of plaintiff’s claims against the scaffolding company. Moreover, the plaintiff testified that she could not see the sidewalk where she was walking, due to a visual impairment and because a pizza box she was holding obstructed her view. Notwithstanding, Procida’s motion for summary judgment was denied, even though it had no duty to repair the sidewalk until after the sidewalk shed was removed and despite plaintiff’s admitted visual impairments.
The Appellate Division, First Department reversed this egregious decision by finding that Procida showed that it was only contracted to make repairs to the sidewalk after exterior scaffolding and a sidewalk shed were removed upon completion of the renovation project. In opposition, neither plaintiff nor the other defendants raised a triable issue of fact as to whether the subject sidewalk was narrowed, forcing plaintiff to walk onto the defect. The court found that the record was bereft of evidence that the scaffolding and sidewalk shed diverted her toward the uneven sidewalk flag.
What would seem like a great set of facts for the defendant still resulted in a denial of summary judgment in the Bronx. But these actions present several opportunities for victory and counsel must be tenacious and stay the course and pursue every opportunity to win, at all times, even when the case takes an unexpected turn. And on occasion, the opportunity is a result of appellate practice.
Thanks to Vincent Terrasi for his contribution to this post. Please email Vito A. Pinto with any questions.