MARTINEZ v. 561 144 REALTY LLC (2026)

Order, Supreme Court, New York County (Leslie A. Stroth, J.), entered December 3, 2025, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant, the owner of the building where plaintiff lived, failed to establish prima facie entitlement to summary judgment, as it did not sustain its initial burden of demonstrating it did not cause, create, or have actual or constructive notice of the defective ceiling that allegedly injured plaintiff (see Figueroa v. Goetz, 5 AD3d 164, 165 [1st Dept 2004] ).  In support of its motion, defendant submitted the deposition testimony of the building's superintendent, who stated that prior to the ceiling collapse neither plaintiff nor anyone else complained of a leak in the unit above plaintiff's apartment.  While this testimony, standing alone, may have been sufficient to establish defendant's prima facie burden, defendant also submitted plaintiff's deposition testimony, which rebutted the superintendent's account.  Plaintiff testified that approximately two to three months before the incident, the building's manager and superintendent saw mold on plaintiff's bathroom ceiling, and instead of cleaning the mold and finding the cause of it, they painted over it.  This testimony creates a triable issue of fact as to whether defendant knew about moisture in plaintiff's apartment and therefore had notice of a defect (see Duley v. S & N Rugova Props.  LLC, 236 AD3d 544, 545 [1st Dept 2025] ).  To the extent defendant contends that plaintiff testified that he initially thought the mold was dirt, this inconsistency at most raises a credibility question not properly resolved on summary judgment (see Simpertegui v. Carlyle House Inc., 227 AD3d 486, 486 [1st Dept 2024] ).

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