Psihogios v. Stavropoulos

269 A.D.2d 295, 703 N.Y.S.2d 462, 2000 N.Y. App. Div. LEXIS 2037

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 2000
• Status: Published

Opinion

—Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about September 17, 1999, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Contrary to defendants’ contention, plaintiffs allegation that his accident resulted from grease that accumulated on his shoes as he serviced appliances at defendants’ restaurant was not presented for the first time in his affidavit in opposition to the motion for summary judgment. Plaintiff referred to grease in the kitchen when he described the circumstances of the injury at his deposition, and his bill of particulars alleged that the area where he was injured was unsafe and impassable and that defendants had failed to repair the hazardous conditions and properly maintain the space. Any inconsistencies in plaintiffs evidentiary statements are issues of credibility properly left for resolution by the trier of fact (see, Ferrante v American Lung Assn., 90 NY2d 623, 631; Adriano v Manhattan & Bronx Surface Tr. Operating Auth., 250 AD2d 541, 542). Concur — Sullivan, P. J., Nardelli, Wallach, Lerner and Buckley, JJ.