Best v. 1482 Montgomery Estates, LLC

114 A.D.3d 555, 980 N.Y.S.2d 755

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 20, 2014
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered November 21, 2012, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Defendant failed to establish its entitlement to judgment as a matter of law in this action for personal injuries sustained by plaintiff when sheetrock from the ceiling of her apartment fell on her; defendant owned the building. Defendant’s submissions included plaintiffs testimony that she had called the office of defendant’s building manager several times before the collapse to complain that her bedroom ceiling had a crack and leaked water (see Govan v Ft. Sheri Realty Co., 267 AD2d 99 [1st Dept 1999]; cf. Figueroa v Goetz, 5 AD3d 164 [1st Dept 2004]). That the building manager’s employee denied receiving any such complaints, only created credibility questions for a jury to resolve (see Asabor v Archdiocese of N.Y., 102 AD3d 524, 527 [1st Dept 2013]). It cannot be said that plaintiffs testimony was incredible as a matter of law (see Espinal v Trezechahn 1065 Ave. of the Ams., LLC, 94 AD3d 611 [1st Dept 2012]), or that it consisted only of feigned issues of fact (see Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441 [1968]; compare Beahn v New York Yankees Partnership, 89 AD3d 589, 590 [1st Dept 2011]). Concur — Gonzalez, P.J., Tom, Saxe, Freedman and Manzanet-Daniels, JJ.