Practice point: At deposition, plaintiff testified that she fell because her foot hit a bump in the sidewalk. Defendants moved for summary judgment on the ground that plaintiff's inability to identify the bump or defect in photographs shown to her at her deposition prevented her from being able to prove that her accident was proximately caused by a sidewalk defect for which they were responsible.
The Appellate Division denied summary judgment, finding that plaintiff's testimony was sufficient to demonstrate a causal nexus between a sidewalk defect and her fall. In order to defeat summary judgment, she was not required to prove precisely which defect in the sidewalk caused her to fall.
Student note: In opposition to the motion, a police report, although hearsay, was considered along with the admissible evidence of plaintiff's deposition testimony.
Case: Kovach v. PJA, LLC, NY Slip Op 03931 (1st Dept. 2015)
Here is the decision.
Tomorrow' s issue: The requirement of a shareholder's presuit demand.
