VARGAS v. CON EDISON COMPANY OF NEW YORK INC (2024)

Order, Supreme Court, New York County (James E. d'Auguste, J.), entered on or about January 13, 2023, which granted plaintiff's motion for summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion denied.

Triable issues of fact exist as to where and how the accident occurred, which preclude summary judgment on the issue of liability.  Plaintiff's deposition testimony, complaint, and bill of particulars allege that he fell over a defective grate on a sidewalk in front of 333 West 46th Street in Manhattan.  However, plaintiff initially filed a signed and notarized notice of claim alleging that he fell on a defective sidewalk in front of 346 West 46th Street, with no reference to a grate, raising an issue of fact that cannot be resolved on summary judgment (see Stephens v. Triborough Bridge & Tunnel Auth., 55 A.D.3d 410, 411, 866 N.Y.S.2d 48 [1st Dept. 2008];  see also Rodriguez v. New York City Hous. Auth., 215 A.D.2d 362, 363, 626 N.Y.S.2d 240 [2d Dept. 1995]).

Further, differing statements attributed to plaintiff in his medical record as to how the accident occurred, together with other evidence in the record, raise an issue of fact as to the cause of plaintiff's accident sufficient to preclude summary judgment (see Pina v. Arthur Clinton Hous. Dev. Fund Corp., 188 A.D.3d 614, 132 N.Y.S.3d 753 [1st Dept. 2020];  Robles v. Polytemp, Inc., 127 A.D.3d 1052, 1054, 7 N.Y.S.3d 441 [2d Dept. 2015]).