Gonzalez v Daly IV Hous. Dev. Fund Co., Inc., 2023 NY Slip Op 01359 [214 AD3d 501]

March 16, 2023

Appellate Division, First Department

[*1]

Tanya Gonzalez, Respondent,

v

Daly IV Housing Development Fund Company, Inc., et al., Appellants.

Lester Schwab Katz & Dwyer, LLP, New York (Daniel S. Kotler of counsel), for appellants.

Mischel & Horn, P.C., New York (Scott T. Horn of counsel), for respondent.

Order, Supreme Court, Bronx County (Paul L. Alpert, J.), entered August 17, 2022, which denied defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff seeks to recover for injuries she sustained when she fell on a stairway in a building owned and managed by defendants. Plaintiff testified at her deposition that she fell after stepping on a broken chip, three inches wide and deep, in the middle of the third step from the bottom of the stairway, which she circled on a photograph.

In support of their motion for summary judgment, defendants submitted contemporaneous video footage of the accident that they assert contradicts plaintiff’s testimony, as well as still photographs culled from the video. We agree with plaintiff that this evidence does not conclusively demonstrate that the alleged defect had nothing to do with her fall, and that there is a triable issue of fact, inter alia, concerning the proximate cause of the accident. The grainy video and stills derived from it, taken from an angle, do not definitively show that plaintiff did not step on the alleged defect ( see Derouen v Savoy Park Owner, L.L.C. , 109 AD3d 706 [1st Dept 2013]). Concur—Kapnick, J.P., Friedman, Gesmer, Moulton, Mendez, JJ..