Opinion
No. 16914 Index No. 450493/18 Case No. 2021-03067
12-15-2022
Jose Serrano, Plaintiff-Respondent, v. Brook Plaza, LLC, et al., Defendants-Appellants.
Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellants. Hasapidis Law Offices, South Salem (Annette G. Hasapidis of counsel), for respondent.
Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellants.
Hasapidis Law Offices, South Salem (Annette G. Hasapidis of counsel), for respondent.
Before: Renwick, J.P., Shulman, Rodriguez, Higgitt, JJ.
Order, Supreme Court, New York County (Lewis J. Lubell, J.), entered on or about August 2, 2021, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants failed to establish prima facie entitlement to summary judgment, as they did not present any evidence that the accident did not occur on their property. Moreover, contrary to defendants' contentions, plaintiff repeatedly testified that a "break" in the sidewalk abutting defendants' premises was the injury-causing defect, consistently described the location of his fall, and identified the location of the break in three photographs (see Joachim v AMC Multi-Cinema, Inc., 129 A.D.3d 433, 434 [1st Dept 2015]). Any inconsistencies in plaintiff's testimony raised only issues of fact and credibility, which are not determined on a motion for summary judgment (see Johnson v Ann-Gur Realty Corp., 117 A.D.3d 522 [1st Dept 2014]; Fernandez v VLA Realty, LLC, 45 A.D.3d 391 [1st Dept 2007]). Whether plaintiff's subsequent fall from a 15-foot embankment was a superseding cause of his injuries was improperly raised for the first time in reply (see Lewis v Revello, 172 A.D.3d 505, 506 [1st Dept 2019]; Ruggerino v Prince Holdings 2012, LLC, 170 A.D.3d 568, 568 [1st Dept 2019]).