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A Long Island, N.Y., man who suffered a broken hand when he tripped and fell over a life-size sculpture of a glove mounted as an art exhibit on a Manhattan traffic island may proceed with his personal injury lawsuit against the city and the Public Art Fund. New York Supreme Court Justice Michael D. Stallman dismissed summary judgment motions brought by the defendants in Fleiss v. City of New York, 109634/98. He concluded that it cannot be held as a matter of law that the sculpture was an open and obvious condition that the plaintiff, Israel Fleiss, should have seen and avoided. The sculpture, “Monument to the Lost Glove,” by the Russian emigre conceptual artist Ilya Kabakov, was installed in a traffic island on 23rd Street at the intersection of Broadway and Fifth Avenue in March 1997. The exhibit was handled by the Public Art Fund, a nonprofit organization that presents the work of contemporary artists in New York’s public spaces. Made of a plastic resin poured over a real glove and bolted to the sidewalk, the sculpture routinely fooled passersby who assumed it was real and bent over to pick it up. The glove was surrounded by a semi-circle of nine metal music stands, each bearing a short comment on the glove’s presence. In a review of the sculpture in The New York Times in August 1997, Roberta Smith wrote: “The texts can get a little tedious, but the piece is one of the better examples of Conceptual Art’s infiltration of public art. Taking place most vividly in the viewer’s mind, it makes one stop, look and see the city a little more poetically. Mr. Kabakov’s musings are on the dour side, but his work also evokes an old Chinese proverb, ‘The lost glove is happy.’ “ The incident at issue occurred on Dec. 16, 1997. As Fleiss, on his lunch hour, walked across the traffic island, he tripped over the glove sculpture and fell, suffering abrasions and a broken right hand. According to his lawyer, Jeffrey Lisabeth of East Meadow, N.Y., Fleiss continues to suffer from reflex sympathetic dystrophy and withering in his right arm as a result of the fall. Fleiss filed suit the following year, seeking damages for his injuries. The action included a claim of loss of consortium by Fleiss’ wife, Loretta. The City and Public Art Fund moved for summary judgment, arguing that the artwork was an open and obvious condition that Mr. Fleiss should have seen and avoided. But Justice Stallman disagreed. “It cannot be said as a matter of law on this submission that its actual nature as a piece of sculpture bolted to the sidewalk (instead of a soft piece of cloth lying on the ground) was immediately apparent to plaintiff, or would have been to any passerby,” the judge wrote. “Neither can the Court find as a matter of law that the glove, however it may have appeared, was clearly visible to plaintiff at the time of the incident.” Stallman also found that the fact that there were nine signs on the island calling attention to the sculpture did not defeat liability, since it cannot be determined where exactly the signs were placed, whether Fleiss should have seen them and whether they provided adequate warning. FACTS FOR A JURY Finally, the judge ruled that the Public Art Fund’s assertion that Fleiss deliberately encountered the sculpture by crossing in the middle of the block, and the fact that Fleiss admitted in his deposition that he had seen the glove before, were not dispositive. Rather, he found, those are factors that may be weighed by a jury in assessing whether issues of contributory fault or comparative negligence exist. Lisabeth represented Mr. and Mrs. Fleiss. The Office of the Corporation Counsel represented the City. William Kleen of the Caulfield Law Office in Manhattan represented the Public Art Fund in the summary judgment motion. William J. Ryan of Manhattan’s Law Office of Michael F.X. Manning, who is now handling the case for the Public Art Fund, said that the Fund is contemplating an appeal.

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