GLOVER v. ASTOR COURT OWNERS CORP (2025)

Order, Supreme Court, New York County (Judy H. Kim, J.), entered on or about September 27, 2024, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to eliminate all issues of fact as to whether plaintiff's accident occurred on their property and their motion for summary judgment was properly denied (cf.  Misa v. Town of Brookhaven, 212 A.D.3d 804, 806, 181 N.Y.S.3d 654 [2d Dept. 2023];  Irizarry v. Heller, 95 A.D.3d 951, 953, 943 N.Y.S.2d 606 [2d Dept. 2012];  see generally Pasternack v. Laboratory Corp. of Am. Holdings, 27 N.Y.3d 817, 825, 37 N.Y.S.3d 750, 59 N.E.3d 485 [2016]).  This personal injury action stems from plaintiff's alleged slip-and-fall on defendants’ property.  Defendants urge that plaintiff's accident, if it occurred at all, did not occur on their property, and that plaintiff's testimony to the contrary was incredible as a matter of law.  Although some of defendants’ records confirm that a delivery was made after 2 p.m. to the eighth floor, the records do not disprove plaintiff's account of the delivery that culminated in his alleged accident – namely, a delivery between 11:30 a.m. and 1 p.m. to the second floor.

On this record, we cannot say that plaintiff's version of events is “manifestly untrue, physically impossible, or contrary to common experience” and, therefore, incredible as a matter of law (Cruz v. New York City Tr. Auth., 31 A.D.3d 688, 690, 821 N.Y.S.2d 97 [2d Dept. 2006], aff'd 8 N.Y.3d 825, 828 N.Y.S.2d 287, 861 N.E.2d 102 [2007]).  Rather, the parties’ different versions of the facts raise credibility issues that must be resolved by the factfinder (see Breton v. Dishi, 206 A.D.3d 446, 447, 167 N.Y.S.3d 793 [1st Dept. 2022]).