MORALES v. LLC (2026)

Order, Supreme Court, Bronx County (Ashlee Crawford, J.), entered on or about January 7, 2025, which, to the extent appealed from as limited by the briefs, denied the motion of defendants Omni New York LLC, The Arker Companies, Dabar Development Partners, and UAC Pact Housing Development Fund Corporation for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff commenced this action alleging injuries sustained after she tripped and fell on construction debris left in the interior hallway of her apartment building.  Defendants argued that they did not own, maintain, or perform construction in the building on or before the date of plaintiff's accident.  However, according to plaintiff a few weeks prior to her accident defendants held a meeting for the building residents to discuss the timeline for renovations and the transition of management.

Supreme Court properly denied defendants' motion for summary judgment.  Defendants failed to establish their prima facie case that they did not cause or create the alleged defect that caused plaintiff to trip and fall (see O'Connor v. Tishman Constr. Corp., 182 A.D.3d 502, 503, 123 N.Y.S.3d 91 [1st Dept. 2020]).  The nonparty affidavit submitted by defendants in support of their motion has no probative value because it was not made based on the affiant's personal knowledge or based on identifiable business records (see Muslar v. Hall, 214 A.D.3d 77, 81, 185 N.Y.S.3d 45 [1st Dept. 2023];  cf. Valentine v. 2147 Second Ave. LLC, 203 A.D.3d 531, 531–532, 165 N.Y.S.3d 43 [1st Dept. 2022]).  The affiant failed to sufficiently establish the basis for his statement that no work was performed by defendants until after plaintiff's accident (see Muslar, 214 A.D.3d at 81, 185 N.Y.S.3d 45).  In light of the foregoing, we need not address the sufficiency of plaintiff's opposition because the burden never shifted from defendants.

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