Espinal v. 1760-1770, LLC

Opinion

Espinal v 1760-1770, LLC

2026 NY Slip Op 04926

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Jose Luis Espinal, respondent,

v

1760-1770, LLC, appellant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2024-04984, (Index No. 519880/21)

Lara J. Genovesi, J.P.

William G. Ford

Carl J. Landicino

Susan Quirk, JJ.

Barker Patterson Nichols, LLP, Valhalla, NY (Adonaid C. Medina of counsel), for appellant.

Subin Associates, LLP (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Lori E. Parkman], of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated March 27, 2024. The order granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.

The plaintiff commenced this action against the defendant to recover damages for personal injuries that he allegedly sustained when he tripped and fell on a defect in the sidewalk abutting the defendant's property. In an order dated March 27, 2024, the Supreme Court granted the plaintiff's motion for summary judgment on the issue of liability. The defendant appeals.

"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Cashwell v Stop & Shop Supermarket Co., LLC, 219 AD3d 795, 795-796 [internal quotation marks omitted]). Other than exceptions not applicable here, Administrative Code of the City of New York § 7-210(a) places a duty upon "the owner of real property abutting any sidewalk . . . to maintain such sidewalk in a reasonably safe condition" (Cumbal v 83-09 35th Realty, LLC, 223 AD3d 869, 870 [internal quotation marks omitted]). "[T]o prevail on a motion for summary judgment, a plaintiff must demonstrate, prima facie, that the property owner created the defect or had actual or constructive notice of the defect" (Shiu Ya Luo v Croyden Apts., Inc., 219 AD3d 1364, 1365 [internal quotation marks omitted]; see Shannon v Astoria 2101, LLC, 240 AD3d 638, 638-639).

Here, the plaintiff failed to demonstrate his prima facie entitlement to judgment as a matter of law on the issue of liability. His deposition testimony, which included inconsistencies regarding the location of the alleged accident and was generally vague, in addition to a lack of other supporting evidence, placed his own credibility in issue and presented triable issues of fact regarding how the alleged accident occurred (see Zokir v Teller Owner, LLC, 237 AD3d 1008, 1009). The plaintiff also testified at his deposition that he was the only witness to the alleged accident, which [*2]further raised credibility issues, since "[o]n a motion for summary judgment . . . , self-serving statements of an interested party which refer to matters exclusively within that party's knowledge create an issue of credibility which should not be decided by the court but should be left for the trier of facts" (Quiroz v 176 N. Main, LLC, 125 AD3d 628, 631 [internal quotation marks omitted]).

Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability.

GENOVESI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court