Opinion
10213 Index 156029/16
10-29-2019
GUO PING LI, Plaintiff–Respondent, v. OVERSEAS PARTNERSHIP CO., INC., Defendant–Appellant, [And a Third–Party Action]
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant. Law Office of Gary S. Park, P.C., Flushing (Gary S. Park of counsel), for respondent.
Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for appellant.
Law Office of Gary S. Park, P.C., Flushing (Gary S. Park of counsel), for respondent.
Richter, J.P., Gische, Tom, Gesmer, Moulton, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered November 21, 2018, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant failed to establish its prima facie entitlement to judgment as a matter of law in this action where plaintiff was injured when he tripped and fell on an uneven surface of the sidewalk abutting defendant's premises (see Dabbagh v. Newmark Knight Frank Global Mgt. Servs., LLC, 99 A.D.3d 448, 450, 952 N.Y.S.2d 118 [1st Dept. 2012] ). Plaintiff testified that two sections of the sidewalk had a difference in height, and identified the location as approximately 12 to 18 inches behind a traffic signal pole (see Figueroa v. City of New York, 126 A.D.3d 438, 440, 5 N.Y.S.3d 62 [1st Dept. 2015] ). Plaintiff's inability to pinpoint the exact location of his fall in photographs does not render his testimony speculative (see id. at 440, 5 N.Y.S.3d 62 ). Any inconsistencies in plaintiff's testimony as to the cause of his fall are for the jury's credibility determination (see DiGiantomasso v. City of New York, 55 A.D.3d 502, 503, 866 N.Y.S.2d 184 [1st Dept. 2008] ). Nor did defendant establish its entitlement to summary judgment by submitting the affidavit of its expert, whose inspection of the sidewalk occurred three years after the accident occurred and after the sidewalk had been fixed (see Figueroa v. Haven Plaza Hous. Dev. Fund Co., 247 A.D.2d 210, 668 N.Y.S.2d 203 [1st Dept. 1998] ).
Defendant's argument that it did not create or cause the dangerous condition and did not have notice of it is unpreserved, since it is raised for the first time on appeal (see Diarrassouba v. Consolidated Edison Co. of N.Y. Inc., 123 A.D.3d 525, 999 N.Y.S.2d 33 [1st Dept. 2014] ). In any event, the argument is unavailing, as it is based upon a property manager's vague testimony which was insufficient to show the absence of constructive notice (see Joachim v. AMC Multi–Cinema, Inc., 129 A.D.3d 433, 11 N.Y.S.3d 119 [1st Dept. 2015] ).