Latif v Eugene Smilovic Hous. Dev. Fund Co., Inc.

Latif v Eugene Smilovic Hous. Dev. Fund Co., Inc. 2017 NY Slip Op 01164 Decided on February 14, 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 February 14, 2017
Tom, J.P., Sweeny, Renwick, Moskowitz, Kapnick, JJ.
308502/12 3100N 3099

[*1] Pattie Latif, Plaintiff-Appellant,

v

Eugene Smilovic Housing Development Fund Co., Inc., Defendant-Respondent.

Spiegel & Barbato, LLP, Bronx (Stephen A. Iannacone of counsel), for appellant.

Burke, Conway, Loccisano & Dillon, White Plains (Marc Stiefeld of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J., entered July 10, 2014, which granted defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied. Appeal from order, same court and Justice, entered August 21, 2015, which, to the extent appealable, denied plaintiff's motion to renew, unanimously dismissed, without costs, as academic.

Defendant failed to establish its entitlement to judgment as a matter of law, in this action where plaintiff was injured when she tripped over a crack in the sidewalk in front of defendant's building, and fell to the ground. Defendant failed to show that it lacked constructive notice of the defect in the sidewalk, as the record shows that plaintiff testified that she saw the condition that caused her fall about a year earlier, and the photographs taken within a week of the accident depict a condition that a jury might find existed for a sufficient period of time for defendant to have discovered and corrected it (see King v City Bay Plaza, LLC, 118 AD3d 476 [1st Dept 2014]; Denyssenko v Plaza Realty Servs., Inc., 8 AD3d 207, 208 [1st Dept 2004]). Although plaintiff's testimony may contain inconsistencies, credibility issues are not appropriately resolved on a summary judgment motion (see e.g. Santos v Temco Serv. Indus., 295 AD2d 218 [1st Dept 2002]).

Defendant also failed to demonstrate that the defect shown in the photograph and marked at plaintiff's deposition was, under the circumstances, physically insignificant or that its characteristics or the surrounding circumstances did not increase the risk it posed (see Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 79 [2015]; King at 476).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 14, 2017

CLERK