Boyd v. Rome Realty Leasing Limited Partnership

21 A.D.3d 920, 801 N.Y.S.2d 340

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 12, 2005
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated November 9, 2004, which granted the defendants’ motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The Supreme Court erred in granting the defendants’ motion for summary judgment dismissing the complaint on the ground that the plaintiff failed to sufficiently identify the cause of her trip and fall. All of the evidence must be viewed in the light most favorable to the plaintiff, as the opponent of the motion for summary judgment, and all reasonable inferences must be resolved in her favor (see Mitchell v Fiorini Landscape, 253 AD2d 860, 861 [1998]). A fair reading of the deposition testimony of the 96-year-old plaintiff is that she alternately referred to what she tripped and fell on as broken concrete and a hole. Furthermore, there are triable issues of fact as to whether the defendants had constructive notice of the defective condition on the walkway (see DeGruccio v 863 Jericho Turnpike Corp., 1 AD3d 472, 473 [2003]). Florio, J.P., Krausman, Luciano and Spolzino, JJ., concur.