Serrano v. Brook Plaza, LLC , 2022 NY Slip Op 07171 ( 2022 )

Serrano v Brook Plaza, LLC (2022 NY Slip Op 07171)

Serrano v Brook Plaza, LLC

2022 NY Slip Op 07171

Decided on December 15, 2022

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: December 15, 2022
Before: Renwick, J.P., Shulman, Rodriguez, Higgitt, JJ.

Index No. 450493/18 Appeal No. 16914 Case No. 2021-03067

[*1]Jose Serrano, Plaintiff-Respondent,

v

Brook Plaza, LLC, et al., Defendants-Appellants.

Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellants.

Hasapidis Law Offices, South Salem (Annette G. Hasapidis of counsel), for respondent.

Order, Supreme Court, New York County (Lewis J. Lubell, J.), entered on or about August 2, 2021, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to establish prima facie entitlement to summary judgment, as they did not present any evidence that the accident did not occur on their property. Moreover, contrary to defendants' contentions, plaintiff repeatedly testified that a "break" in the sidewalk abutting defendants' premises was the injury-causing defect, consistently described the location of his fall, and identified the location of the break in three photographs (see Joachim v AMC Multi-Cinema, Inc., 129 AD3d 433, 434 [1st Dept 2015]). Any inconsistencies in plaintiff's testimony raised only issues of fact and credibility, which are not determined on a motion for summary judgment (see Johnson v Ann-Gur Realty Corp., 117 AD3d 522 [1st Dept 2014]; Fernandez v VLA Realty, LLC, 45 AD3d 391 [1st Dept 2007]). Whether plaintiff's subsequent fall from a 15-foot embankment was a superseding cause of his injuries was improperly raised for the first time in reply (see Lewis v Revello, 172 AD3d 505, 506 [1st Dept 2019]; Ruggerino v Prince Holdings 2012, LLC, 170 AD3d 568, 568 [1st Dept 2019]).THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 15, 2022