Martinez v. City of New York

Martinez v City of New York (2021 NY Slip Op 00261)

Martinez v City of New York

2021 NY Slip Op 00261

Decided on January 19, 2021

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: January 19, 2021
Before: Gische, J.P., Oing, Moulton, Mendez, JJ.

Index No. 21498/14 Appeal No. 12905 Case No. 2019-04944

[*1]Petrona Martinez, Plaintiff-Respondent,

v

The City of New York, Defendant, New York City Housing Authority, Defendant-Appellant.

Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for appellant.

Raphaelson & Levine Law Firm, P.C., New York (Steven C. November of counsel), for respondent.

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about October 27, 2019, which denied defendant New York City Housing Authority's (NYCHA) motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Contrary to NYCHA's contention, although plaintiff was unable to pinpoint on photographs the exact location of her fall on an uneven sidewalk abutting its premises, she did not merely speculate as to the cause of the accident but testified consistently that she tripped on a sidewalk defect abutting defendant's premises, identified the general location where she fell and clarified any possible misidentification of the defect which caused her fall (see Figueroa v City of New York, 126 AD3d 438, 440 [1st Dept 2015]; Cherry v Daytop Vil., Inc., 41 AD3d 130, 131 [1st Dept 2007]). Any inconsistencies in plaintiff's testimony as to the cause of her fall present credibility issues for the jury's determination (see Guo Ping Li v Overseas Partnership Co., Inc., 176 AD3d 608, 609 [1st Dept 2019]).

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

ENTERED: January 19, 2021