Gonzalez v. Daly IV Hous. Dev. Fund Co., Inc.

Gonzalez v Daly IV Hous. Dev. Fund Co., Inc. (2023 NY Slip Op 01359) Gonzalez v Daly IV Hous. Dev. Fund Co., Inc. 2023 NY Slip Op 01359 Decided on March 16, 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: March 16, 2023 Before: Kapnick, J.P., Friedman, Gesmer, Moulton, Mendez, JJ. Index No. 26843/20 Appeal No. 17214 Case No. 2022-03775 [*1]Tanya Gonzalez, Plaintiff-Respondent, v Daly IV Housing Development Fund Company, Inc., et al., Defendants-Appellants. Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellants. Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondent. Order, Supreme Court, Bronx County (Paul L. Alpert, J.), entered August 17, 2022, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Plaintiff seeks to recover for injuries she sustained when she fell on a stairway in a building owned and managed by defendants. Plaintiff testified at her deposition that she fell after stepping on a broken chip, three inches wide and deep, in the middle of the third step from the bottom of the stairway, which she circled on a photograph. In support of their motion for summary judgment, defendants submitted contemporaneous video footage of the accident that they assert contradicts plaintiff's testimony, as well as still photographs culled from the video. We agree with plaintiff that this evidence does not conclusively demonstrate that the alleged defect had nothing to do with her fall, and that there is a triable issue of fact, inter alia, concerning the proximate cause of the accident. The grainy video and stills derived from it, taken from an angle, do not definitively show that plaintiff did not step on the alleged defect (see Derouen v Savoy Park Owner L.L.C., 109 AD3d 706 [1st Dept 2013]). THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: March 16, 2023