Lugo v. New York City Hous. Auth. ( 2023 )

Lugo v New York City Hous. Auth. (2023 NY Slip Op 01959)

Lugo v New York City Hous. Auth.

2023 NY Slip Op 01959

Decided on April 18, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 18, 2023
Before: Kapnick, J.P., Moulton, Kennedy, Mendez, Pitt-Burke, JJ.

Index No. 26358/20E Appeal No. 68 Case No. 2022-04814

[*1]Dechma Lugo, Plaintiff-Respondent,

v

The New York City Housing Authority, Defendant-Appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellant.

Law Offices of John P. Grill, P.C., Carmel (John P. Grill of counsel), for respondent.

Order, Supreme Court, Bronx County (Leticia M. Ramirez, J.), entered on or about September 30, 2022, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant did not satisfy its prima facie burden of establishing its entitlement to judgment as a matter of law. Defendant failed to eliminate all issues of fact as to its notice of the deteriorated condition of the kitchen drainpipe, which resulted in a leak, causing plaintiff to slip and fall (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see also Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986]). Defendant failed to address plaintiff's expert report, which was previously exchanged during discovery, and which concluded that the condition of the pipe was longstanding and should have been discovered and properly repaired prior to plaintiff's accident. In any event, even assuming that defendant met its initial burden, plaintiff raised a triable issue of fact by submitting the affidavit of the expert (see Hernandez v Aldus III Assoc., LP, 115 AD3d 529, 530 [1st Dept 2014]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: April 18, 2023