Practice point: Defendant established its entitlement to judgment as a matter of
law dismissing the complaint through the submission of plaintiff's deposition testimony, which established that he
was unable to identify the cause of his fall. While plaintiff
testified that the staircase handrail ended before the last step, a
determination that this, or any of the other alleged staircase defects, was the proximate cause of the plaintiff's accident, rather
than a misstep or loss of balance, would be speculative. In addition, as plaintiff was carrying a pot weighing at least 35
to 40 pounds with both hands as he went down the staircase, any alleged
defect in the handrail was not a proximate cause of the fall.
Student note: Plaintiff's opposing papers were unavailing. Plaintiff's affidavit presented what clearly appeared to be
feigned issues of fact designed to avoid the consequences of his earlier
deposition testimony, and, therefore, was insufficient to defeat the motion.
Case: Bardales v. VAM Realty Corp., NY Slip Op 00484 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: Application of the storm in progress rule.
