MARTINEZ v. Dollie Adams, Defendant. (2023)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about January 12, 2022, which, to the extent appealed from as limited by the briefs, denied defendant Sandra Contreras's motion for summary judgment dismissing the complaint as against her, unanimously affirmed, without costs.

Defendant failed to satisfy her prima facie burden of establishing as a matter of law that plaintiff slipped and fell on the public street, as opposed to the sidewalk abutting defendant's property, which defendant was responsible for maintaining (see Administrative Code of City of N.Y. § 7–210;  Ascencio v. New York City Hous. Auth., 77 A.D.3d 592, 593, 910 N.Y.S.2d 61 [1st Dept. 2010]).  While defendant argued that plaintiff had testified that she fell on the street, plaintiff's testimony was ambiguous as to where she fell.  Defendant also failed to show that she did not create or have notice of the pile of snow and ice that caused plaintiff's accident (see Vazquez v. Jerome Gas Corp., 173 A.D.3d 526, 526, 100 N.Y.S.3d 521 [1st Dept. 2019]).  Thus, the burden did not shift to plaintiff to come forward with evidence to raise a triable issue of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]).

In any event, even if defendant had satisfied her prima facie burden, plaintiff submitted sufficient proof to raise an issue of fact as to the location of the accident.  Plaintiff averred in her affidavit that she slipped on the sidewalk and that, although she used an interpreter during her deposition, many of the questions were “very confusing.”  Defendant's contention that plaintiff's affidavit was tailored to avoid the consequences of her deposition testimony and submitted to raise a feigned issue of fact is unavailing.  The affidavit provided a reasonable explanation for plaintiff's conflicting accounts as to where she fell (cf.  Telfeyan v. City of New York, 40 A.D.3d 372, 373, 836 N.Y.S.2d 71 [1st Dept. 2007]).  This evidence raises credibility issues, which cannot be resolved on summary judgment.

We reject defendant's contention that she cannot be held liable as a matter of law because the pile of snow and ice that caused plaintiff's accident was open and obvious.  An open and obvious condition only relieves a property owner of its duty to warn, and not the duty to ensure that the premises is maintained in a reasonably safe condition (see Tropper v. Henry St. Settlement, 190 A.D.3d 623, 625, 141 N.Y.S.3d 33 [1st Dept. 2021];  Francis v. 107–145 W. 135th St. Assoc., Ltd. Partnership, 70 A.D.3d 599, 600, 895 N.Y.S.2d 400 [1st Dept. 2010]).  The issue of whether plaintiff was solely at fault for choosing to walk on the pile of snow and ice, or whether the parties were comparatively negligent, is to be determined at trial (see generally Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 [2018]).

We have considered defendant's remaining arguments and find them unavailing.