BROWN v. PARKCHESTER PRESERVATION MANAGEMENT (2026)

Order, Supreme Court, Bronx County (Bianka Perez, J.), entered August 13, 2025, which denied defendant Parkchester South Condominium's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established prima facie entitlement to summary judgment by submitting certified weather records showing that a storm was in progress at the time of plaintiff's fall, as well as the affidavit of a meteorologist stating that there was freezing rain at the time of plaintiff's fall and that it had been consistently precipitating for approximately 16.5 hours before the accident (see Weinberger v 52 Duane Assoc., LLC, 102 AD3d 618, 619 [1st Dept 2013];  Powell v MLG Hillside Assoc., 290 AD2d 345, 345 [1st Dept 2002] ).

In opposition, plaintiff raised a triable issue of fact as to whether a storm was in progress at the time of her fall.  Plaintiff's deposition testimony was that the freezing rain had stopped before she slipped and fell on black ice, and a video of the accident did not show any precipitation.  Although the video does depict plaintiff and a few pedestrians holding umbrellas and wearing hoods, plaintiff testified that she had her umbrella with her when she left home because she did not know what kind of weather she would encounter (see Ndiaye v NEP W. 119th St. LP, 124 AD3d 427, 428 [1st Dept 2015], Pipero v New York City Tr. Auth., 69 AD3d 493, 493 [1st Dept 2010] ).  The court properly declined to disregard plaintiff's testimony on the basis that the errata sheet retracting her initial testimony that there was precipitation at the time of the accident was feigned, as questions of credibility are left to the trier of fact (see Carver v Artiles, 220 AD3d 441, 441–442 [1st Dept 2023] ).

Moreover, the record presents triable issues of fact as to whether black ice existed prior to the storm, and whether defendant had constructive notice of that condition (see Ndiaye, 124 AD3d at 428).  Defendant did not submit evidence establishing when the walkway was last inspected or cleaned (see Barrett v Aero Snow Removal Corp., 167 AD3d 519, 520 [1st Dept 2018] ).  Nor did the testimony of defendant's property manager conclusively establish that defendant's snow and ice removal work, to the extent any such work was conducted, did not exacerbate the alleged icy condition (see e.g. Pipero, 69 AD3d at 493).