Wade Clark Mulcahy LLP

<p style="text-align: justify;">In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/12/Rizzo-v.-City-of-New-York.pdf">Rizzo v. City of New York,</a></em> the plaintiff was injured when she tripped and fell on the sidewalk in front of a residence. The plaintiff commenced an action to recover damages for personal injuries against the homeowners and the City of New York.  In response, the homeowners moved for summary judgment seeking to dismiss the complaint. However, their motion was ultimately denied by the Bronx County Supreme Court.</p>
<p style="text-align: justify;">In their motion for summary judgment, the homeowners alleged that they were exempt from the statutory liability imposed by the Administrative Code of the City of New York §7-210(b) because their property was an owner-occupied, two-family residence and there was no evidence showing that they made special use of the area. Further, the homeowners also made a prima facie showing that they did not cause or create the alleged defect. The homeowners supported their claim by submitting deposition testimony where they denied that they attempted to repair the area before the accident. Additionally, the homeowners submitted testimony from the City of New York's witness who attested that the property records from two years prior and the accident date were searched and no permits for sidewall repairs were found.</p>
<p style="text-align: justify;">In opposition, the plaintiff raised a triable issue of fact when she provided photographic evidence that there was a patched area on the portion of the sidewalk where she allegedly fell. Further, the plaintiff provided evidence that the City did not undertake any repairs until after the plaintiff's accident. The Appellate Division, First Department held that the defendants' denials that they repaired the sidewalk before the accident presented a credibility issue that could not be resolved on a motion for summary judgment.</p>
<p style="text-align: justify;">This decision serves as an important reminder that credibility issues raise a triable issue of fact and may defeat a motion for summary judgement.</p>
<p style="text-align: justify;">Thanks to Caitlin Larke for her contribution to this post.  Please email <a href="mailto:chayes@wcmlaw.com">Colleen E. Hayes</a> with any questions</p>