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LORNA BIVINS, ET AL., PLAINTIFFS-RESPONDENTS, v. ZECKENDORF REALTY, LP, ET AL., DEFENDANTS-APPELLANTS, THE CITY OF NEW YORK, DEFENDANT-RESPONDENT, WIOZ/515 REAL ESTATE, LIMITED PARTNERSHIP, ET AL., DEFENDANTS.

We reject appellants' argument that they are entitled to summary judgment on the basis of plaintiff's deposition testimony. The tenor of the testimony is that plaintiff could not say whether it was one of the several potholes in the crosswalk that she tripped over or an item of the debris that appellants admit, for present purposes, came from their construction project. Having identified dangerous conditions that at least in part were caused by appellants' negligence in creating and leaving construction debris in the crosswalk, it was not plaintiff's burden to show, in the first instance, that she fell on such debris; rather, it was appellants' burden to show, in the first instance, that such debris was not the cause of plaintiff's fall (see, Tiles v. City of New York, 262 A.D.2d 174). No such showing was made.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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BIVINS v. ZECKENDORF REALTY
(Dec 18, 2001)