Opinion
15000 Index No. 25898/17E Case No.2021–02990
01-06-2022
Franchesca MELENDEZ, Plaintiff–Respondent, v. ALLIANCE HOUSING ASSOCIATES, L.P., et al., Defendants–Appellants, AAA Management Corp., et al., Defendants.
Litchfield Cavo LLP, New York (Patrick T. Steinbauer of counsel), for appellants. Krieger, Wilansky & Hupart, Bronx (Brett R. Hupart of counsel), for respondent.
Litchfield Cavo LLP, New York (Patrick T. Steinbauer of counsel), for appellants.
Krieger, Wilansky & Hupart, Bronx (Brett R. Hupart of counsel), for respondent.
Kern, J.P., Mazzarelli, Gesmer, Gonza´lez, Higgitt, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered August 6, 2021, which denied the motion of defendants Alliance Housing Associates, L.P., Alliance Housing Associates LLC, and Park AAA Management Inc. for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs. Plaintiff's submissions raised triable issues of fact as to whether defendants had constructive notice of the visible dangerous condition. Plaintiff demonstrated, through her testimony and photographs, that the floor was deteriorating and that there were loose and broken tile pieces on the third-floor landing, months before the accident happened (see Hill v. Lambert Houses Redevelopment Co., 105 A.D.3d 642, 642–643, 963 N.Y.S.2d 651 [1st Dept. 2013] ). The defective condition, plaintiff stated in her testimony, was left unaddressed. Although plaintiff did not see the defect immediately prior to her fall, she stated that she felt a piece of tile under her foot when she slipped, and immediately afterward, she saw that the loose tile had fallen. The fact that plaintiff did not see the loose tile while she slipped and fell does not make her conclusion speculative (see Schneider v. Kings Highway Hosp. Ctr., 67 N.Y.2d 743, 744–745, 500 N.Y.S.2d 95, 490 N.E.2d 1221 [1986] ). Further, defendants and plaintiff's conflicting version as to how the accident occurred raise credibility issues, and "[i]t is not the court's function on a motion for summary judgment to assess credibility" ( Ferrante v. American Lung Assn., 90 N.Y.2d 623, 631, 665 N.Y.S.2d 25, 687 N.E.2d 1308 [1997] ).
We have considered defendants’ remaining arguments and find them unavailing.