NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
January 19, 2010
JOSE CASTILLO, PLAINTIFF-RESPONDENT,
NEW YORK CITY TRANSIT AUTHORITY, ET AL., DEFENDANTS-APPELLANTS.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered November 12, 2008, which, insofar as appealed from, as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Mazzarelli, J.P., Saxe, Acosta, DeGrasse, Manzanet-Daniels, JJ.
The evidence submitted by defendants was insufficient to establish as a matter of law that plaintiff solely caused his accident in this slip-and-fall matter or that defendants did not create the alleged water-and-debris hazard and lacked actual or constructive notice of it. Not only did defendants fail to offer specific evidence as to their activities on the day of the accident, but the defendant church acknowledged that it maintained and cleaned the premises daily, with the exception of Sundays, the day the accident occurred (Lebron v Napa Realty Corp., 65 AD3d 436 ; Moser v BP/CG Ctr. I, LLC, 56 AD3d 323 ; Baptiste v 1626 Meat Corp., 45 AD3d 259 ). The motion court also properly found that plaintiff's submissions were sufficient to create triable issues of fact and that issues of credibility were to be resolved at trial, and not by summary judgment (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 ).
We have considered defendants' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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