Montas v. JJC Construction Corp.

Flaintiff alleges that he sustained personal injuries when he stepped over a piece of wood and slipped on “sand and construction debris” as he was crossing the street with his cousin. Approximately three or more feet to plaintiffs right, separated by a six-ton concrete barrier and chain link fence, was the City and JJC Construction’s work site for a project to remove the existing Grand Concourse bridge over East Tremont Avenue and erect a new one, which, among other things, required removing and carting away the old concrete and replacing it with new concrete. Approximately 5 to 10 feet in front of plaintiff was a sidewalk bridge adjacent to a building that, according to JJC’s president, was undergoing brick pointing work.

After the close of evidence, the trial court granted defendants’ motions for a directed verdict, finding that the testimony of plaintiff and his cousin that the sand on which plaintiff slipped was generated from the cutting and chopping of concrete for the roadway project was “more suggestion than proof,” and was insufficient in light of the defense testimony that the roadway project used brown mason sand and that the white sand on which plaintiff slipped was blown over from the pointing project.

Contrary to the dissent’s view, the trial court did not improperly make credibility determinations or decide factual issues when it granted defendants’ motions. Rather, it correctly determined that plaintiff’s self-serving testimony that JJC’s concrete-chopping activities were the source of the greyish-white sand in the street on which he slipped was too speculative to raise an issue of fact.

It was plaintiff’s initial burden to show that “defendant’s negligence was a substantial cause of the events which produced the injury” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). “ ‘ “Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury” ’ ” (Lynn v Lynn, 216 AD2d 194, 195 [1995], quoting Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]). “Even when there is no requirement for the plaintiff to exclude every other possible cause other than a defendant’s breach of duty, ‘the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, not upon speculation’ ” (McNally v Sabban, 32 AD 3d 340, 341 [2006], quoting Lynn, 216 AD2d at 195-196).

Plaintiff testified that he knew he slipped on sand because he felt it underneath his foot when he fell down. However, he did not introduce into evidence a sample of the sand on which he slipped. While plaintiff testified that the sand was the result of the chopping of concrete on the roadway project, he conceded that he never worked with concrete or did road work. Plaintiff and his cousin also conceded that they never did any pointing work and that they were not familiar with the dross it created.

Plaintiffs cousin admitted on cross examination that he did not know if the sand residue came from inside or outside the fence surrounding the roadway project. While he speculated that it “could be” that it came from inside the fence, he conceded that he did not know what material plaintiff slipped on. The City’s project engineer, called by plaintiff as part of his direct case, testified that there was another project in the vicinity, that he could not identify the substance on which plaintiff slipped, and that he had not received any complaints about debris on the street that came from JJC’s work site. JJC’s president testified that the whitish material on which plaintiff slipped was created by the pointing work. While plaintiff and his cousin both testified that they did not see any work being done on the building adjacent to the sidewalk bridge, plaintiff testified that for the most part he and his friends would gather in the area after 5:00 p.m. or 6:00 p.m. His cousin testified that he was not in the area between 9:30 a.m. and 5:00 p.m.

Thus, the facts show that it is just as likely that the accident was caused by debris from the pointing project as by debris from the roadway project, and any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation (see Siegel v City of New York, 86 AD3d 452, 455 [2011] [“(p)laintiff s unsupported assertion that it could have been defendants’ conduit rather than that of Consolidated Edison or the water main break that caused the purported defect is mere conjecture and fails to raise a triable issue of fact”]; Kimball-Malone v City of New York, 7 AD3d 675, 675-676 [2004] [where plaintiff slipped and fell on gravel and sand while ascending flight of stairs in building undergoing renovations, appellant was entitled to summary judgment because “plaintiffs’ contention that the appellant, or a contractor it supervised, created the dangerous condition was too speculative to raise an issue of fact”]). Concur — Andrias, Catterson, and Renwick, JJ.