RAMIREZ v. Melao, also known as Club Melao, etc., Defendant. (2025)

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered December 13, 2024, which, to the extent appealed from, denied the motion of defendants 79–05/07/09 Jackson Heights Property LLC and Estey Corp. for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants failed to establish their prima facie entitlement to summary judgment, as they failed to show that plaintiff was unable to identify the defect that caused his injury (see Siegel v. City of New York, 86 A.D.3d 452, 454, 928 N.Y.S.2d 1 [1st Dept. 2011]).  During his deposition, plaintiff stated unequivocally that it was a broken step which caused his fall.  When shown photographs of the area where he fell, plaintiff consistently and repeatedly identified the defect that caused his fall.  Although plaintiff testified that he did not see the broken step until after the accident, when he was shown photographs of the area at his deposition, his testimony was not speculative but merely raises an issue of plaintiff's credibility, which is one for the factfinder to determine (see e.g. Garrett v. City of New York, 222 A.D.3d 554, 555, 202 N.Y.S.3d 86 [1st Dept. 2023]).  Because defendants failed to eliminate all material issues of fact, their motion was properly denied regardless of the sufficiency of the opposition papers (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]).

We have considered defendants’ remaining arguments and find them unavailing.