Opinion
11496 Index 21518/15E
05-14-2020
Juan ALVARADO, Plaintiff–Respondent, v. Justin GROCERY, Defendant–Appellant.
Devitt Spellman Barrett, LLP, Smithtown (Christi M. Kunzig and John M. Denby of counsel), for appellant. The Sullivan Law Firm, New York (James A. Domini of counsel), for respondent.
Devitt Spellman Barrett, LLP, Smithtown (Christi M. Kunzig and John M. Denby of counsel), for appellant.
The Sullivan Law Firm, New York (James A. Domini of counsel), for respondent.
Richter, J.P., Oing, Singh, Moulton, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered June 21, 2019, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Summary judgment was properly denied in this action where plaintiff was injured when he fell down the stairs while making a delivery to defendant. Plaintiff stated that he believed that the handtruck he was using became stuck in a hole or crack that was on the first or second stair from the top of the cement stairway, and that he did not see the defect before he fell because "it was a little bit dark" and he was pushing the hand truck ahead of him. Such testimony provides a sufficient nexus between the condition of the stairway and the circumstances of his fall to establish causation (see Cherry v. Daytop Vil., Inc., 41 A.D.3d 130, 131, 837 N.Y.S.2d 109 (1st Dept 2007). Any inconsistencies between plaintiff's and his coworker's deposition testimony and plaintiff's Workers' Compensation form as to how the accident happened is a matter of credibility for the finder of fact to determine (see Silva v. 81st St. & Ave. A Corp., 169 A.D.2d 402, 404, 564 N.Y.S.2d 326 (1st Dept 1991), lv denied 77 N.Y.2d 810, 571 N.Y.S.2d 913, 575 N.E.2d 399 (1991) ).