Mincey v. Mensch

Order, Supreme Court, New York County (Phyllis Gangel-Jacob, J.), entered January 29, 1998, which denied the individual defendants’ motions for summary judgment dismissing the complaint, with leave to renew upon completion of discovery, unanimously affirmed, without costs. An issue of fact exists as to whether the defect in the corner curb where plaintiff fell was caused by cars driving over the curb in the course of entering and exiting the vacant lot (used as a parking lot) that lay between the curb and defendants’ buildings (see, Montalvo v Western Estates, 240 AD2d 45). That 657 plaintiff did not trip over the part of the curb that was cut to provide entrance to the lot, but rather over the part located at the corner some distance away from the curb cut, does not eliminate the possibility, at this early stage of the action, that the individual defendants’ alleged special use of the sidewalk produced a proximate cause of the fall. Concur — Rosenberger, J. P., Ellerin, Nardelli and Wallach, JJ.