Opinion
9166 Index 161880/14
05-02-2019
Hercilia GONZALEZ, Plaintiff–Respondent, v. FRANKLIN PLAZA APARTMENTS, INC., Defendant–Appellant.
Mischel & Horn, P.C., New York (Christen Giannaros of counsel), for appellant. White Werbel & Fino, LLP, New York (Matthew I. Toker of counsel), for respondent.
Mischel & Horn, P.C., New York (Christen Giannaros of counsel), for appellant.
White Werbel & Fino, LLP, New York (Matthew I. Toker of counsel), for respondent.
Sweeny, J.P., Gische, Webber, Kahn, Moulton, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered September 24, 2018, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendant failed to satisfy its prima facie entitlement to judgment as a matter of law in this action where plaintiff was injured when she slipped and fell on an accumulation of snow and ice on a sidewalk abutting defendant's building. Notably, defendant failed to proffer an affidavit or testimony based on personal knowledge of when its employees last inspected the sidewalk prior to plaintiff's accident (see Simpson v. City of New York , 126 A.D.3d 640, 640–641, 4 N.Y.S.3d 213 [1st Dept. 2015] ; Lebron v. Napa Realty Corp. , 65 A.D.3d 436, 437, 884 N.Y.S.2d 37 [1st Dept. 2009] ).
Even if we were to find that defendant met its initial burden, plaintiff raised a triable issue of fact based on her testimony that at the time of her fall, the sidewalk was covered with snow. Plaintiff's subsequent affidavit did not flatly contradict her prior deposition testimony, and thus was sufficient to raise an issue of fact (see Red Zone LLC v. Cadwalader, Wickersham & Taft LLP , 27 N.Y.3d 1048, 1049, 34 N.Y.S.3d 397, 54 N.E.3d 69 [2016] ; Santiago v. Pioneer Transp. Corp. , 157 A.D.3d 451, 66 N.Y.S.3d 133 [1st Dept. 2018] ). Furthermore, to the extent that plaintiff's affidavit was inconsistent with her deposition testimony, this raises credibility issues that are properly left for trial (see Piraeus Jewelry v. Interested Underwriters at Lloyd's , 246 A.D.2d 386, 387, 667 N.Y.S.2d 721 [1st Dept. 1998] ).