| Kalland v Hungry Harbor Assoc., LLC |
| 2011 NY Slip Op 04006 [84 AD3d 889] |
| May 10, 2011 |
| Appellate Division, Second Department |
| John Kalland, Respondent, v Hungry Harbor Associates,LLC, et al., Appellants. |
—[*1] Paul B. Weitz, New York, N.Y. (Steven J. Zaloudek of counsel), for respondent.
In an action to recover damages for personal injures, the defendants appeal from an order ofthe Supreme Court, Nassau County (Winslow, J.), entered October 6, 2010, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
While walking in the defendants' parking lot, the plaintiff, a flower delivery person, allegedlytripped over a curb and stumbled 30 to 35 feet before cracks in the pavement, loose debris, andpebbles near a storm drain caused him to fall to the ground. The defendants moved for summaryjudgment dismissing the complaint on the issue of proximate cause. The plaintiff opposed themotion, arguing that there were two proximate causes of his accident, the trip over the curb andthe fall over the condition near the storm drain.
Generally, it is for the trier of fact to determine the issue of proximate cause (see Howardv Poseidon Pools, 72 NY2d 972, 974 [1988]; Scala v Scala, 31 AD3d 423, 424 [2006]). However, the issue ofproximate cause may be decided as a matter of law where only one conclusion may be drawnfrom the established facts (see Howard v Poseidon Pools, 72 NY2d at 974; Scala vScala, 31 AD3d at 424). Additionally, there may be more than one proximate cause of anaccident (see Gestetner vTeitelbaum, 52 AD3d 778, 778 [2008]; Scala v Scala, 31 AD3d at 424-425;Hyde v Long Is. R.R. Co., 277 AD2d 425, 426 [2000]).
Here, the defendants failed to satisfy their prima facie burden of establishing theirentitlement to judgment as a matter of law. Although the curb over which the plaintiff trippedwas not an inherently dangerous condition and was readily observable through the use of one'ssenses (see Ramos v Cooper Invs.,Inc., 49 AD3d 623, 624 [2008]; Colao v Community Programs Ctr. of Long Is., Inc., 29 AD3d 723,724 [2006]), the defendants failed to eliminate all issues of fact as to whether the allegeddefective condition near the storm drain contributed to the plaintiff's fall (see Gestetner vTeitelbaum, 52 AD3d at 778; Scala v Scala, 31 AD3d at 425). Accordingly, theSupreme Court properly denied the defendants' motion for [*2]summary judgment dismissing the complaint.
The defendants' remaining contention has been rendered academic in light of ourdetermination. Angiolillo, J.P., Chambers, Austin and Miller, JJ., concur.