Carver v Artiles, 2023 NY Slip Op 05034 [220 AD3d 441]

October 5, 2023

Appellate Division, First Department

[*1]

William Carver, Respondent,

v

Dagoberto Artiles et al., Appellants.

Mead, Hecht, Conklin & Gallagher, LLP, White Plains (George P. Epstein, II of counsel), for appellants.

The Law Office of Judah Z. Cohen, PLLC, Woodmere (Judah Z. Cohen of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on October 27, 2022, which, to the extent appealed from, denied defendants’ motion for summary judgment dismissing plaintiff’s Labor Law § 200 and common-law negligence claims, unanimously affirmed, without costs. The Clerk is directed to enter judgment accordingly.

The proponent of a summary judgment motion must show entitlement to judgment as a matter of law by presenting sufficient evidence to eliminate any material issues of fact ( see Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985]). Plaintiff’s expert’s report sufficiently raised a question of fact as to whether the 1.8% slope of the patio floor was a defect that created an imbalance that caused plaintiff’s fall from an A-frame ladder while engaged in outside painting work.

Further, plaintiff’s affidavit raised a question of fact as to whether defendants were responsible for creating the alleged defect. Any alleged discrepancies between plaintiff’s affidavit and his deposition testimony raise a question of credibility that is best resolved by the trier of fact ( see Art Capital Group, LLC v Rose , 149 AD3d 447 , 448 [1st Dept 2017] [“a credibility issue may not be resolved on a motion for summary judgment”]). Concur—Manzanet-Daniels, J.P., Singh, Gesmer, Rodriguez, Rosado, JJ..