ESPINAL v. 1760 1770 LLC (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated March 27, 2024.  The order granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.

The plaintiff commenced this action against the defendant to recover damages for personal injuries that he allegedly sustained when he tripped and fell on a defect in the sidewalk abutting the defendant's property.  In an order dated March 27, 2024, the Supreme Court granted the plaintiff's motion for summary judgment on the issue of liability.  The defendant appeals.

“A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries” (Cashwell v. Stop & Shop Supermarket Co., LLC, 219 A.D.3d 795, 795–796, 194 N.Y.S.3d 576 [internal quotation marks omitted] ).  Other than exceptions not applicable here, Administrative Code of the City of New York § 7–210(a) places a duty upon “the owner of real property abutting any sidewalk ․ to maintain such sidewalk in a reasonably safe condition” (Cumbal v. 83–09 35th Realty, LLC, 223 A.D.3d 869, 870, 204 N.Y.S.3d 550 [internal quotation marks omitted] ).  “[T]o prevail on a motion for summary judgment, a plaintiff must demonstrate, prima facie, that the property owner created the defect or had actual or constructive notice of the defect” (Shiu Ya Luo v. Croyden Apts., Inc., 219 A.D.3d 1364, 1365, 195 N.Y.S.3d 798 [internal quotation marks omitted];  see Shannon v. Astoria 2101, LLC, 240 A.D.3d 638, 638–639, 237 N.Y.S.3d 263).

Here, the plaintiff failed to demonstrate his prima facie entitlement to judgment as a matter of law on the issue of liability.  His deposition testimony, which included inconsistencies regarding the location of the alleged accident and was generally vague, in addition to a lack of other supporting evidence, placed his own credibility in issue and presented triable issues of fact regarding how the alleged accident occurred (see Zokir v. Teller Owner, LLC, 237 A.D.3d 1008, 1009, 232 N.Y.S.3d 577).  The plaintiff also testified at his deposition that he was the only witness to the alleged accident, which further raised credibility issues, since “[o]n a motion for summary judgment ․, self-serving statements of an interested party which refer to matters exclusively within that party's knowledge create an issue of credibility which should not be decided by the court but should be left for the trier of facts” (Quiroz v. 176 N. Main, LLC, 125 A.D.3d 628, 631, 3 N.Y.S.3d 103 [internal quotation marks omitted] ).

Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability.

GENOVESI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.