Grullon v. Queens Ballpark Co., L.L.C.

139 A.D.3d 427, 29 N.Y.S.3d 169

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 2016
• Docket: 1050 301355/10
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered April 1, 2014, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff alleges that she was injured when, while leaving Citifield, she tripped over an unevenness in the concrete on an exit ramp. Defendant Queens Ballpark Company admits that it created the condition as part of the construction process, but asserts that it was de minimis and could not have caused plaintiff’s fall. Plaintiff’s testimony is that the unevenness in the concrete was at least two inches and caused her fall. Under these circumstances, defendants’ motion was properly denied because, as the motion court concluded, credibility determinations are not properly made on a motion for summary judgment (see Dauman Displays v Masturzo, 168 AD2d 204 [1st Dept 1990], lv dismissed 77 NY2d 939 [1991]).

Defendant Sterling Mets, L.P.’s argument that it neither owned, maintained, or controlled the premises is a fact-based argument that cannot be raised for the first time on appeal (see Start El., Inc. v New York City Hous. Auth., 106 AD3d 450 [1st Dept 2013]).

We have considered defendants’ remaining arguments and find them unavailing.

Concur — Mazzarelli, J.P., Friedman, Andrias, Moskowitz and Kahn, JJ.