Supreme Court, Bronx County

Decided on May 27, 2026

Index No. 801658/2023E

Veronica G. Hummel, J.

[*1]

In accordance with CPLR 2219(a), the decision herein is made upon consideration of all the papers filed by the parties in NYSCEF in connection with defendant MOHAMMAD ALI, LLC's motion (Motion #4), made pursuant to CPLR 3212, seeking an order awarding defendant summary judgment dismissing plaintiff LILLIE MAE THOMAS' complaint and other relief.

Background/Facts

Plaintiff commenced the instant action with the filing of a summons and complaint on January 30, 2023.

In the complaint, plaintiff alleges that, on July 7, 2022, plaintiff fell while traversing a defective sidewalk "adjacent to 1711 St. Peters Avenue, County of Bronx, City and State of New York." ("the 1711 Building"). Defendant owns the 1711 Building. Plaintiff claims that defendant's negligent construction, design, and/or maintenance of the sidewalk abutting the 1711 Building was the cause of the July 7, 2022 accident ("the July 2022 Accident").

Defendant interposed an answer on April 4, 2023.

Three months later, on July 13, 2023, plaintiff served a verified bill of particulars. In the bill of particulars, plaintiff alleges that she fractured her right knee in the July 2022 Accident and thereafter required surgery on the knee. The medical procedure, an open reduction with internal fixation of the right knee, was performed two weeks post-accident, on July 20, 2022.

Almost two years after serving the bill of particulars, on January 7, 2025, plaintiff appeared for a deposition in this action. At the deposition, plaintiff testified that she fell on July 7, 2022, while traversing an unlevel defective sidewalk and the fall occurred in front of the 1711 Building. Plaintiff further stated that she knew the location of the defect and fall because, at the time of the accident, she noted the corresponding house numbers.

Thereafter, during the deposition, plaintiff was presented with a photograph of a new building, different than the 1711 Building, that was located at 1729 St. Peters Avenue in the [*2]Bronx ("the 1729 Building"). Plaintiff then identified this distinct building, the 1729 Building, as the location of the defect and fall. Furthermore, on the photograph of the 1729 Building, plaintiff marked a spot in front of the 1729 Building as the place where the defect existed and the fall occurred. Plaintiff testified that she recognized the 1729 Building as the location where she fell based in part on the color of the 1729 Building's front door. The 1729 Building is owned by non-party Nfn Nowrang.

Plaintiff further testified that after she fell, she was unable to get up and move. Instead, a passerby found plaintiff on the ground, picked her up, and sat her down and called 911. The man waited until paramedics arrived.

On June 26, 2025, defendant Mohammad Ali, LLC. filed the instant motion for summary judgment in this case. The motion is supported by video surveillance footage from a building adjacent to the 1711 Building which was recorded on the morning of the accident. The footage shows that no trip and fall accident transpired in front of the 1711 Building between 5:00 a.m. and 2:00 p.m. on the date of the July 2022 Accident.

The motion is also supported by an affidavit from Aaron M. Rosa ("Rosa"). Rosa states that at the time of the July 2022 Accident, he resided with his mother in an apartment located in the 1729 Building. Rosa further avers that upon returning home from the grocery store at 10:05 a.m. on the morning of the accident, he came across an injured African American woman sitting on the ground in front of the 1729 Building. Rosa dialed 911 and remained with the woman until paramedics arrived. The injured woman told Rosa that she had fallen on the sidewalk.

Defendant also submits certified ambulance records and the other records indicating that paramedics responded to the 1729 Building in connection with the July 2022 Accident and not the 1711 Building. Moreover, in an affidavit from Jussie Vargas ("Vargas"), one of the paramedics who responded to the scene of plaintiff's accident, Vargas states that, at the relevant date and time, the paramedics responded to the 1729 Building.

Defendant also provides a copy of the deed to the 1729 Building. The deed establishes that Nowrang owns the 1729 Building. Finally, defendant includes a copy of an email from defense counsel to plaintiff's counsel that was sent on June 25, 2025. The email attached copies of the witness affidavits which described the 1729 Building as the location of plaintiff's accident.

Six days after the motion for summary judgment was filed in this case, on July 1, 2025, plaintiff's counsel filed a new lawsuit based on the July 2022 Accident in Bronx County (Index Number 814072/2025E) ("the Second Action") naming Nfn Nowrang and SBA 1731 LLC as defendants. In the Second Action, plaintiff's counsel served a bill of particulars wherein plaintiff now alleged that: plaintiff injured her right knee in a July 7, 2022, accident and was caused to undergo a right knee open reduction with internal fixation on July 20, 2022. Plaintiff further alleged that the July 7, 2022, accident occurred at a completely different location than is claimed in this case. Specifically, in the new action, plaintiff now alleged that on July 7, 2022, plaintiff fell while traversing a defective sidewalk adjacent to the 1729 Building "and/or 1731 St. Peters Avenue, County of Bronx, City and State of New York."

Accordingly, in the Second Action, plaintiff now proclaimed that it was the new defendants Nowrang and SBA's negligent construction, design, and/or maintenance that actually caused the July 7, 2022, accident and her knee injury. Clearly, the Second Action is founded on the same accident and the same injury that serves as the basis for this personal injury case which is filed against completely different defendants who own property at a separate and distinct address. Of note, in the Second Action, there does not appear to be any mention of this pending [*3]litigation in plaintiff's submissions.

On September 23, 2025, three months after commencing the Second Action based on a fall in front of the 1729 Building, plaintiff filed opposition to the motion for summary judgment in this action against the 1711 Building. Plaintiff submits an attorney affirmation, a personal affidavit of plaintiff (dated September 22, 2025), and an affidavit of Robert Sanderson (video engineer).

In her personal affidavit dated September 22, 2025 ("Plaintiff's September 22, 2025 Affidavit"), plaintiff avers that she fell in front of the 1711 Building. Plaintiff swears that she was confused at her January 2025 deposition when she identified the 1729 Building as the location of the defect and accident. In addition, she claims, for the first time in the record, that, after the fall, "a man assisted me up and helped me to a nearby location in front of a house several doors down where there was a space for me to sit and await the arrival of the emergency medical services". Plaintiff attaches a marked photo of the front of the 1711 Building and states that she circled the condition on the sidewalk in front of the 1711 Building which caused her accident.

In reply, defendant served an attorney's affirmation and copies of the Second Action pleadings on September 29, 2025.

Only a few days later, on October 3, 2025, despite having just sworn in this case that she fell in front of the 1711 Building, plaintiff filed a motion seeking a default judgment against defendant SBA in the Second Action claiming that the July 2022 Accident happened in front of the 1729 Building. In support of the motion, plaintiff submitted a notarized affidavit ("Plaintiff's September 30, 2025 Affidavit"). This new affidavit was sworn to about seven days after the Plaintiff's September 22, 2025 Affidavit was submitted in this case. In complete contrast to the earlier affidavit submitted in this action, in the new affidavit, plaintiff now proclaimed, that:

"On July 7, 2022, I was caused to fall and be seriously injured while she was lawfully traversing the public sidewalk adjacent to the premises known as 1729 and/or 1731 St. Peters Avenue, County of Bronx, City and State of New York due to the public sidewalk's raised, defective, hazardous and unsafe conditions. As a result, I sustained serious personal injuries that required me to undergo a right knee surgery on July 20, 2022."

By Decision and Order dated December 19, 2025, but entered on December 26, 2025, the Honorable Andrew J. Cohen granted plaintiff's motion seeking a default judgment against SBA in the Second Action. Again, it appears that Justice Cohen was not informed of this pending action involving the same plaintiff and accident.

On February 19, 2026, this Court held oral argument on the motion for summary judgment in this case. Argument was heard with regards to the inconsistent sworn testimony submitted by plaintiff in this and the Second Action and the possible legal and ethical implications of said submissions.

One month later, pursuant to a stipulation filed on March 27, 2026, plaintiff discontinued the Second Action with prejudice.

Analysis

The "proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to eliminate any material issues of fact from the case." (Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Upon such a showing, the burden then shifts to the nonmovant to present evidentiary [*4]facts in admissible form sufficient to raise a genuine, triable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]); Mazurek v Metro. Museum of Art, 27 AD3d 227, 228 [1st Dept 2006]).

To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. Issue finding, rather than issue determination, is the key to the procedure (see Matter of Suffolk County Dept. of Social Servs. v James M., 83 NY2d 178 [1994]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). In making this determination, the court must view the evidence in the light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference which can be drawn from the evidence (see De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]; William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 [2013]; Nash v Port Washington Union Free School Dist., 83 AD3d 136, 146 [2d Dept 2011]).

There are, however, rare instances where credibility is properly determined as a matter of law (Carthen v Sherman, 169 AD3d 416, 417 [1st Dept 2019](reversing denial of summary judgment dismissing complaint where plaintiff offered "internally contradictory deposition testimony" that also "contradict[ed] every other piece of evidence in the record," including photographs of the damaged vehicle and a police report]; see Yao v World Wide Travel of Greater New York, Ltd., 226 AD3d 838 [2d Dept 2024]; Cicardo National, Inc. v Loeb, 220 AD3d 615 [1st Dept 2023]). The Court is not required to shut its eyes to the patent falsity of a claim (Carthen v Sherman, supra; see MRI Broadway Rental v United States Min. Prods. Co., 242 AD2d 440, 443 [1st Dept 1997]). Self-serving testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value (Yao v World Wide Travel of Greater NY Ltd., supra; Cicardo National, Inc. v Loeb, supra). Evidence may be said to be incredible as a matter of law when it is demonstrably false or contradicts every other piece of evidence in the record (Hartree Partners, LP v Vaquero Permian Processing LLC., 227 AD3d 101 [1st Dept 2024]; Carthen v Sherman, supra; Yao v World Wide Travel of Greater NY Ltd., supra; Cicardo National, Inc. v Loeb, supra; see Gaffney v New York City Transit Authority, 210 AD3d 426 [1st Dept 2022]).

Furthermore,

"[i]t is axiomatic that statements made by a party in an affidavit, a police report, or a deposition a that are not denied by the party constitute an admission, and that later, conflicting statements containing a different version of the facts are insufficient to defeat summary judgment, as the later version presents only a feigned issue of fact" (Estate of Mirjani v DeVito, 135 AD3d 616, 617 [1st Dept 2016]; see Curl v Schiffman, 183 AD3d 415 [1st Dept 2020]; O'Connell v Macy's Corporate Services, Inc., 154 AD3d 628 [1st Dept 2017]).

Hence, an affidavit that conflicts with earlier or other sworn to testimony in an attempt to create a feigned issue fact is without evidentiary value (Estate of Mirjani v DeVito, supra; see Curl v Schiffman, supra; O'Connell v Macy's Corporate Services, Inc., supra).

On this motion for summary judgment, in terms of liability, pursuant to Administrative Code of the City of New York § 7-210, a property owner has a nondelegable duty to maintain and repair the sidewalk abutting its premises (see Collado v Cruz, 81 AD3d 542, 542 [1st Dept 2011]). "While an owner can shift the work of maintaining the sidewalk to another, the owner [*5]cannot shift the duty, nor exposure and liability for injuries caused by negligent maintenance, imposed under section 7—210." (Xiang Fu He v Troon Mgt., Inc., 34 NY3d 167, 174 [2019]). Obviously, fundamental to this liability is a showing that the defendant owned the property abutting the defective sidewalk that caused plaintiff's injury.

Based on the moving papers, defendant met its prima facie burden by establishing that the July 2022 Accident did not occur in front of defendant's property, the 1711 Building. The surveillance footage conclusively establishes that the plaintiff did not trip and fall in front of the 1711 Building on the date of the accident. Furthermore, plaintiff identified the 1729 Building as the location of the defect and fall at deposition, on a photograph, and in a recent sworn to affidavit in the Second Action, establishing by her own testimony that the location was at the 1729 Building, and not abutting defendant's 1711 Building. In addition, the non-party witness and the EMT aver that plaintiff was found in front of the 1729 Building, and that fact is confirmed by the ambulance records.

In opposition, plaintiff's self-serving deposition testimony and affidavit in opposition are insufficient to raise a triable issue of fact. Under the constellation of circumstances and the evidence presented here, plaintiff's testimony that she tripped and fell in front of the 1711 Building on the morning of July 7, 2022, is not credible as a matter of law (Carthen v Sherman, supra; see Yao v World Wide Travel of Greater New York, Ltd., supra; Cicardo National, Inc., v Loeb, supra). Plaintiff's initial testimony that the accident occurred in front of the 1711 Building is contradicted by the sworn testimony plaintiff made later at deposition. Moreover, plaintiff's statement in the Plaintiff's September 22, 2025 Affidavit that the accident was in front of the 1711 Building was then directly contradicted by plaintiff's own sworn to testimony set forth in the subsequent Plaintiff's September 30, 2025 Affidavit and the bill of particulars submitted in the Second Action. Furthermore, plaintiff's claim in this action that the 1711 Building was the location of the accident is directly contradicted by two non-party witness affidavits, video surveillance footage, and the certified ambulance records. As such, the testimony that the accident was in front of the 1711 Building is incredible as a matter of law as it is demonstrably false and contradicts every other piece of evidence in the record, including plaintiff's own statements (Carthen v Sherman, supra; Hartree Partners, LP v Vaquero Permian Processing LLC., supra; Gaffney v New York City Transit Authority, supra). Here, in light of plaintiff's fundamentally internally inconsistent sworn to testimony and pleadings, the Court concludes that plaintiff's testimony should be rejected as incredible as a matter of law, permitting summary judgment in favor of defendant (Carthen v Sherman, supra; Hartree Partners, LP v Vaquero Permian Processing LLC., supra).

In any event, Plaintiff's September 22, 2025 Affidavit submitted in opposition to this motion is not competent evidence. The affidavit was created after plaintiff's deposition and after plaintiff commenced the Second Action. As such, under the circumstances, plaintiff's new claims therein that she was confused at the time of her deposition, she fell in front of the 1711 Building, and that, after falling, that she got up with assistance from another person and moved several doors down the block to another location to wait for emergency services, is rejected as a feigned attempt to avoid the consequences of plaintiff's previous sworn testimony (Estate of Mirjani v DeVito, supra; Curl v Schiffman, supra).

Of note, Plaintiff's September 22, 2025 Affidavit not only contradicts plaintiff's earlier testimony that she was unable to get up after falling and other details that she fully testified to at deposition, but the affidavit also clearly conflicts with Plaintiff's September 30, 2025 Affidavit [*6]and the bill of particulars subsequently submitted in Second Action. In sharp contrast to the affidavit submitted in opposition on this motion, in this newer affidavit, signed by plaintiff only seven days later, plaintiff claims the accident happened in front of the 1729 Building. In other words, over the course of mere days, plaintiff signed and submitted to the Court two sworn statements advancing two completely different versions of the same accident, including different allegations as to the circumstances of and location of the defect and fall, as against distinct defendants in two separate lawsuits. These various versions of fact, tailored to serve plaintiff's purposes in each individual litigation, are clear attempts to create a feigned issue of fact in this case and the Second Action(Estate of Mirjani v DeVito, supra; see Curl v Schiffman, supra; O'Connell v Macy's Corporate Services, Inc., supra; Colon v Vals Ocean Pac. Sea Foods, Inc., 157 AD3d 462 [1st Dept 2018]; Garzon-Victoria v Okolo, 116 AD3d 558, [1st Dept 2014]). The Court finds this latest version of the accident put forth by plaintiff to be a feigned attempt to avoid the adverse consequences of plaintiff's earlier recorded statements and it is rejected.

Finally, plaintiff's expert opinion as to the accuracy of the video taken near the 1711 Building on the date of the accident is speculative and thus insufficient to raise a triable issue of fact (Cabrera v Golden, 231 AD3d 149, 156 [1st Dept 2024]). Plaintiff's expert opines that due to the video having been compressed, frames have been dropped which may result in events which actually occurred not appearing in the video. Plaintiff's expert also claims that this is detectible in part because the timestamp in the video jumps forward. However, plaintiff's expert opinion does not state that the portion of the video depicting the time surrounding the plaintiff's accident was compromised and offers no opinion that the purported defects in the video specifically caused plaintiff's alleged accident in front of the 1711 Building and the appearance of a good Samaritan and emergency services to not appear in the footage. Finally, the expert does not opine that the timestamp jumped forward at the time of the accident. The submission is therefore insufficient to generate a question of fact warranting denial of the motion for summary judgment, and the motion is properly granted.

The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any contention is not addressed by the Court, it is hereby rejected.

Accordingly, it is hereby

ORDERED that defendant MOHAMMAD ALI, LLC's motion (Motion #4), made pursuant to CPLR 3212, seeking an order awarding defendant summary judgment dismissing plaintiff LILLIE MAE THOMAS' complaint and other relief is GRANTED; and it is further

ORDERED that the Clerk shall enter judgment dismissing the complaint in its entirety; and it is further

ORDERED that the Clerk shall mark the motion as decided and the action disposed in all Court records.

The foregoing constitutes the Decision and Order of the Court.

Dated: May 27, 2026

Bronx, New York

Hon. Veronica G. Hummel, A.S.C.J.