JEREZ v. Moya Mellizzo Plastic Cover and General Tapestry, Defendant. (2024)

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered April 19, 2023, which, insofar as appealed from, granted the motion of defendants 2406–12 Amsterdam Assoc., Leor Management Corp., and 2406–12 Amsterdam Associates LLC (collectively, the 2406 defendants) for summary judgment dismissing the complaint and all cross-claims as against them, unanimously reversed, on the law, without costs, and the motion denied.

Triable issues of fact exist as to whether the defect on which plaintiff allegedly tripped was on the property of the 2406 defendants.  Plaintiff testified that a photograph showing the border between the 2406 defendants’ property and the abutting property is the area where her foot hit something, causing her to stumble forward and fall.  Such testimony and photographic evidence sufficiently creates a question of fact as to the 2406 defendants’ liability (Sangaray v. West Riv. Assoc., LLC, 26 N.Y.3d 793, 799, 28 N.Y.S.3d 652, 48 N.E.3d 933 [2016]).  It is not utterly incredible that plaintiff could have tripped in front of the 2406 defendants’ property and then stumbled forward and ultimately fallen in front of the store beyond their property lines.  Although plaintiff concedes that her testimony is somewhat inconsistent as to where she tripped, “[a]ny inconsistencies in plaintiff's testimony as to the cause of her fall present credibility issues for the jury's determination” (Martinez v. City of New York, 190 A.D.3d 561, 136 N.Y.S.3d 702 [1st Dept. 2021]).