In Taveras v 1149 Webster Realty Corp., 2015 NY Slip Op 09192, the court held that plaintiff’s trip-and-fall case should not have been dismissed:
[W]e find that defendants in this case failed to meet their initial burden of establishing, prima facie, their entitlement to judgment as a matter of law by asserting that plaintiff could not identify the defect that caused him to fall. In fact, plaintiff, who testified at his depositions through a Spanish interpreter, testified at his first deposition that upon exiting the convenience store he “stepped like on a hole,” and that he “stepped on something” on the defective ramp which caused his ankle to twist and him to fall to the ground. He further testified at that deposition that “[w]hen [he] stepped, it was that [he] felt like something — – that something was not right underneath,” “[l]ike [he] stepped on something not solid.” That plaintiff could not initially identify the location of his accident, based upon photographs he was shown at his first deposition that depicted only the bottom portion of a door with no other identifying features, is hardly surprising and not dispositive. Upon being shown, at his second deposition, additional photographs depicting the full entrance area and front of the convenience store, plaintiff was able to definitively identify and mark with an “X” the area on the ramp which was “not leveled” and caused him to fall (see e.g. Figueroa v City of New York, 126 AD3d 438, 440 [1st Dept 2015] [testimony not speculative when plaintiff could not pinpoint the exact location of her fall in photographs and later clarified upon further questioning]). Plaintiff’s testimony distinguishes this case from the cases cited by the dissent where this Court determined [*2]that defendants had sustained their burden of establishing their entitlement to summary judgment as a matter of law because a jury would have to engage in “impermissible speculation to determine the cause of the accident”