Peña v. Tyrax Realty Mgt., Inc.

Peña v Tyrax Realty Mgt., Inc. (2017 NY Slip Op 03695)

Peña v Tyrax Realty Mgt., Inc.

2017 NY Slip Op 03695

Decided on May 9, 2017

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 on May 9, 2017
Acosta, J.P., Renwick, Mazzarelli, Gische, Gesmer, JJ.

3933 302550/12

[*1]Jessica Peña, Plaintiff-Respondent,

v

Tyrax Realty Management, Inc., et al., Defendants-Appellants.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Jillian Rosen of counsel), for appellants.

Cellino & Barnes, P.C., Garden City (John Lavelli of counsel), for respondent.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about May 31, 2016, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to make a prima facie showing of their entitlement to summary judgment, since the evidence they submitted raises genuine issues of fact about whether they created a dangerous condition (see DiVetri v ABM Janitorial Serv., Inc., 119 AD3d 486, 487 [1st Dept 2014]). The superintendent of the building owned by defendant 2305 Grandco and managed by defendant Tyrax testified that he had mopped the accident location with soap and water approximately five minutes before plaintiff slipped and fell and did not place warning signs in the area. Moreover, plaintiff's testimony provides a nonspeculative basis for her version of the accident and sufficiently establishes a nexus between the hazardous condition and the circumstances of her fall (Yuk Ping Cheng Chan v Young T. Lee & Son Realty Corp., 110 AD3d 637, 637-638 [1st Dept 2013])

Even if defendants had made a prima facie showing, it was rebutted by, among other things, the transcript of a recorded conversation between plaintiff and a Tyrax manager, in which the manager conceded that the area had been mopped and that no warning signs were placed thereafter. Even if a portion of the transcript is hearsay, under the particular circumstances it may be considered in conjunction with the other evidence to defeat summary judgment (see Marquez v 171 Tenants Corp., 106 AD3d 422, 423 [1st Dept 2013]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 9, 2017

CLERK