This is a personal injury action in which plaintiff, IVONNE MENDEZ, seeks to recover damages for injuries she sustained as a result of a trip and fall accident which occurred on October 8, 2010, while she was walking on the sidewalk adjacent to the premises located at 106 West 34th Street, New York, New York. The commercial building is owned by Herald Center. The plaintiff allegedly fell in front of a business known as Diamonds and Dials, a tenant of Herald Center.

Plaintiff commenced the instant action by filing a summons and complaint on September 19, 2011. Issue was joined by service of defendant's verified answer dated November 17, 2011. In her verified bill of particulars, the plaintiff alleges that defendants were negligent in failing to maintain the premises in a safe and proper condition and permitting the sidewalk in front of the premises to remain in a defective condition. By order dated August 27, 2013, the motion by defendant Freha, Inc., d/b/a Diamonds and Dials for an order granting summary judgment dismissing the plaintiff's complaint against them was granted without opposition. This court held that the defendant Diamond and Dials established its prima facie entitlement to judgment as a matter of law by demonstrating that Herald Center, as the owner of the subject property had the duty to maintain the sidewalk in a reasonably safe condition and because there was no evidence that he tenant created the defect.

Defendant Herald Center now moves for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the plaintiff's complaint against it on the ground that the plaintiff, when testifying at her examination before trial, was unable to remember the basic facts of her alleged incident. Counsel asserts that the plaintiff stated that she did not notice a crack prior to her incident and that she was unable to identify any dimensions of the crack or where the crack was located. Counsel contends that as there is no testimony that the plaintiff tripped on a defective condition, the cause of her fall in front of defendant's building is speculative.

In support of the motion, defendant submits an affidavit and memorandum of law from counsel, Christopher B. Hitchcock, Esq.; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; a copy of the transcript of the examination before trial of plaintiff, Ivonne Mendez; a copy of the examination before trial of Joe Menendez on behalf of defendant Herald Center; a copy of the examination before trial of Adam Gindy on behalf of defendant Diamonds and Dials; and photographs [*2]of the location.

In her deposition taken on August 8, 2012, the plaintiff, age 44, stated that she is employed as the academic director at Zoni Language Center. She testified that on the date in question, October 8, 2010, she was walking from the subway stop at 34th Street to the Zoni Language Center located at 22 West 34th Street. She stated that she fell on the sidewalk next to the Diamonds and Dials jewelry store located on 34th Street. She testified that while walking she was looking straight ahead, not looking down at the sidewalk. When asked to describe how the accident occurred she stated:

"As I was walking towards 34th Street, I was walking on the sidewalk. All of a sudden I felt my foot just going to this twist on the right and it went right into something inside the sidewalk and my body leaned towards the right and I was trying to balance and I finally fell and I landed on my rear-end." She stated that she was stepping with her right foot. When asked what her foot came into contact with, she answered, "Well, once I was—-once I fell, I was on the floor, I saw there was a crack on the sidewalk. It was —it was a very damaged— sort of like when it's the sidewalk is damaged, there's a crack and there is something that you could actually go into and you know, trip or fall." She stated that the crack was in the middle of the sidewalk in front of the jewelry store. She stated that her foot did not get caught on anything and she did not trip over anything. She states that she does not recall exactly how it happened in terms of how her foot went in. She just knew she fell and wound up on the sidewalk. She specifically stated that she did not trip over anything. After she fell she observed that the sidewalk was damaged that there was a crack where her foot went in. She stated that the crack was a foot long and a foot wide. She stated that, "it wasn't something little. It was something noticeable." When shown photographs of the sidewalk in the area where she fell, she could not identify the exact crack. She stated her foot did not get caught in anything. After she fell she felt pain in her right foot and someone helped her up. With the assistance of an individual on the street she was able to limp to her destination which was less than a block away. She did not call EMS or file a report with the jewelry store. From her office she called her father who took her to the emergency room at North Shore Hospital in Forest Hills. At the hospital she learned that she had sustained a fracture of the fifth metatarsal bone of the right foot.

In his examination before trial, dated January 15, 2013, Joe Menendez, the building manager/chief engineer for Herald Center stated that Diamonds and Dials was a tenant located on th first [*3]floor. He stated that he periodically inspects the sidewalk every one or two days looking for cracks and holes. He states that he either fixes damage to the sidewalk himself where he is able to or hires someone to do it. He was not aware of plaintiff's accident until he learned of her lawsuit. He stated that he was not aware of any repairs required to be performed to the sidewalk in front of the jewelry store in three years prior to the accident. He did not recall the tenant reporting any problems or requesting repairs to the sidewalk in October 2010.

Adam Gindy the owner of Diamonds and Dials testified on January 15, 2013. He stated that he did not recall ever having made any complaints regarding cracks or holes on the sidewalk outside of his store and does not recall any complaints from employees regarding defects on the sidewalk. He was never informed of the accident by the plaintiff and did not receive notice of it until he received the summons and complaint. He does not recall ever receiving any complaints from customers regarding the condition of the sidewalk in front of the store.

Defendant's counsel contends that summary judgment dismissing the complaint must be granted as the plaintiff has failed to demonstrate, prima facie, that her injuries were the result of tripping on a defect in the sidewalk. Counsel asserts that the plaintiff was unable to identify the cause of the incident. She was unable to identify the dimensions of the crack, identify exactly where the crack was located or identify the crack in any of the photographs taken of the scene. Further, plaintiff stated that she did not trip but rather that her right foot twisted when she fell into something. Counsel suggest that the plaintiff's claim that she tripped as a result of a crack or defect is based upon pure speculation and that it is more likely than not that she simply twisted her ankle while walking on the sidewalk. In his memorandum of law, the defendant's counsel asserts that the plaintiff's complaint must be dismissed citing cases which state that "in a trip and fall case the plaintiffs inability to identify the cause of his or her fall is fatal to his or her cause of action, since in that instance the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation" (see Giraldo v Twins Ambulette Serv., Inc., 96 AD3d 903 [2d Dept. 2012]; Alabre v Kings Flatland Car Care Ctr., Inc., 84 AD3d 1286 [2d Dept. 2011]; Louman v Town of Greenburgh, 60 AD3d 915 [2d Dept. 2009]; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434 [2d Dept. 2006][although proximate cause can be established in the absence of direct evidence of [*4]causation and may be inferred from the facts and circumstances underlying the injury, mere speculation as to the cause of a fall, where there can be many causes, is fatal to a cause of action]; Rodriguez v Cafaro, 17 AD3d 658 [2d Dept. 2005]).

In opposition, plaintiff submits an affidavit dated June 28, 2013, in which she states that after exiting the subway at 34th Street she walked on the sidewalk on 34th Street for twenty feet when she felt her right foot twist and go into a hole in the sidewalk causing her to fall. She states that immediately after she fell she observed the crack on the sidewalk that caused her to fall. She states that "the crack ran across the width of the sidewalk from the store toward the curb. In the middle of the sidewalk there was a hole connected to the crack." She states that at the point where she fell the jewelry store was immediately to my left. She also attached photographs taken on June 27, 2013 which purport to depict the crack on which she fell.

Further, the plaintiff submits a copy of the transcript of her testimony taken under oath at a 50-h hearing on February 7, 2011. At the hearing she also testified that she came out of the subway and walked 20 feet on 34th Street when the accident occurred. She stated that it happened in front of the jewelry store located at 106-34 West 34th Street towards the middle of the sidewalk. At the hearing she described the accident by stating that she was walking to her destination when "my right foot went into a hole, I felt it twist and I fell on my rear end." She states that she noticed the hole after she fell. She described the hole as " a very abnormal polygon shape." She said at that time it was two feet long and two feet wide and 3 or four inches deep.

Plaintiff's counsel, Ian Asch, Esq. contends in opposition to the motion that the plaintiff adequately identified the location where she fell as the middle of the sidewalk in front of the jewelry store. He states that her testimony at the deposition as well as her affidavit and 50-h testimony were consistent in her description of the location of the accident as well as her contention that her foot went into a hole or crack in the sidewalk which she observed immediately after the fall.

Upon review and consideration of the defendant's motion, the plaintiff's affirmation in opposition and the defendant's reply thereto this court finds as follows:

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material [*5]issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

The courts have held that: "in a trip and fall case, a plaintiff's inability to identify the cause of his or her fall is fatal to his or her cause of action, since, in that instance, the trier of fact would be required to base a finding of proximate cause upon nothing more than speculation" (Louman v Town of Greenburgh, 60 AD3d 915 [2d Dept. 2009]; Giraldo v Twins Ambulette Serv., Inc., 96 AD3d 903 [2d Dept. 2012]; Alabre v Kings Flatland Car Care Ctr., Inc., 84 AD3d 1286 [2d Dept. 2011]; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434 [2d Dept. 2006]).

However, in deciding a motion for summary judgment "all of the evidence must be viewed in the light most favorable to the plaintiff, as the opponent of the motion for summary judgment, and all reasonable inferences must be resolved in her favor" (Giraldo v Twins Ambulette Serv., Inc., 96 AD 903 [2d Dept. 2012]; Green v Quincy Amusements, Inc., 108 AD3d 591 [2d Dept. 2013]; Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920 [2d Dept. 2005]). Here, this court finds that taking into consideration the plaintiff's deposition testimony, her testimony at the 50-h hearing (see DiGiantomasso v City of New York, 55 AD3d 502 [1st Dept. 2008]), and her affidavit in opposition to the motion, the plaintiff sufficiently identified the location of the defect as being in front of the jewelry store and sufficiently identified and described the cause of her fall, to wit, as a hole and crack in the sidewalk which was as least one foot by one foot and 3 - 4 inches in depth. Here, the cause of her fall was identified without the plaintiff engaging in speculation (cf. Racines v Lebowitz, 105 AD3d 934 [2d Dept. 2013]). This court finds that the plaintiff's testimony did not establish that she did not know what caused her to fall, rather it raised a question of fact as to whether and to what extent her fall was caused by the crack in the sidewalk (see Bernardo v 444 Route 111, LLC, 83 AD3d 753 [2d Dept. 2011]; Boyd v Rome Realty Leasing Ltd. P'ship, 21 AD3d 920 [2d Dept. 2005]).

For all of the above-stated reason, it is hereby

ORDERED, that the motion by defendant HERALD CENTER DEPARTMENT STORE OF NEW YORK, LLC for summary judgment on the issue of liability and for an order dismissing the plaintiff's complaint is denied. [*6]

This case remains on the calendar of the Trial Scheduling Part for October 24, 2013.

Dated: September 10, 2013

Long Island City, NY

___________________

ROBERT J. MCDONALD

J.S.C.