MOLINA v. LLC (2024)

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about July 10, 2023, which, upon reargument, denied defendants’ motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly denied the appealing defendants’ summary judgment motions.  Defendant The Loft 124 Condominium failed to proffer any evidence that it had inspected the alleged defective Masonite board outside the elevator area of the lobby before plaintiff's fall (see Ross v. Betty G. Reader Revocable Trust, 86 A.D.3d 419, 421, 927 N.Y.S.2d 49 [1st Dept. 2011];  cf.  Raghu v. New York City Hous. Auth., 72 A.D.3d 480, 897 N.Y.S.2d 436 [2010]).

Defendant Romo Construction Corp. demonstrated its prima facie entitlement to summary judgment through its foreman's testimony that he examined the subject area only 40 minutes before plaintiff's fall (see Reeves v. 1700 First Ave. LLC, 142 A.D.3d 830, 37 N.Y.S.3d 262 [1st Dept. 2016]).  However, plaintiff raised triable issues of fact.  One is whether the foreman had seen the hazardous condition of the Masonite board upon his inspection (see Reaves v. Lakota Constr. Group, Inc., 154 A.D.3d 637, 637, 63 N.Y.S.3d 371 [1st Dept. 2017]).  The other is whether Romo had created the condition by, among other things, moving equipment over the Masonite boards and failing to properly re-tape it, given that plaintiff testified that the edges of the board were bent upwards causing her to trip and fall (id.).  Given the conflicting testimony as to whether the Masonite board was in a defective condition at the time of plaintiff's accident, any determination would be based upon the credibility of the parties, which is to be resolved at trial and not on a motion for summary judgment (see DeSario v. SL Green Mgt. LLC, 105 A.D.3d 421, 422, 963 N.Y.S.2d 24 [1st Dept. 2013]).