| Figueroa v West 170th Realty, Inc. |
| 2008 NY Slip Op 08540 [56 AD3d 299] |
| November 13, 2008 |
| Appellate Division, First Department |
| Salvador Figueroa, Respondent, v West 170th Realty, Inc.,Respondent, and Bronx 99 Cents LLC, Appellant, et al, Defendants. |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), for SalvadorFigueroa, respondent. Jeffrey Miller & Associates, P.C., New York (Jeffrey Miller of counsel), for West 170thRealty, Inc., respondent.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about March 10,2008, which, insofar as appealed from, in an action for personal injuries allegedly sustained as aresult of a slip and fall on snow and ice, denied the motion of defendant Bronx 99 Cents LLC forsummary judgment dismissing the complaint and all cross claims as against it, unanimouslyaffirmed, without costs.
The evidence, including, inter alia, conflicting testimony from the owner of Bronx 99 Centsand the landlord, defendant West 170th Realty, Inc., presents triable issues of fact as to whether,pursuant to its lease, Bronx 99 Cents was responsible for removing the snow and ice on theportion of the sidewalk where plaintiff slipped and fell. Furthermore, although the owner ofBronx 99 Cents could not recall the snow removal efforts taken by his employees on the date ofthe accident, his testimony as to his general snow removal practice, as well as plaintiff'stestimony that he fell when he slipped on a patch of ice underneath the gray, slushy snow locatedwithin a shoveled pathway, and that a safe alternative route to get around the hazard he slippedon did not exist as the shoveled path abruptly ended, was sufficient to raise triable issues as towhether Bronx 99 Cents created or exacerbated a dangerous condition (see Sanchez v City of New York, 48AD3d 275 [2008]; Prenderville vInternational Serv. Sys., Inc., 10 AD3d 334, 337-338 [2004]). Finally, even assumingthat the court improperly considered an unsworn report from plaintiff's expert (see e.g.Charlton v Almaraz, 278 AD2d 145 [2000]), it is clear that the [*2]court did not base its ruling exclusively on the report. Rather, it isevident that the court considered the documentary and deposition evidence in arriving at itsdetermination. Concur—Tom, J.P., Mazzarelli, Saxe, Nardelli and Buckley, JJ.