Practice point: The Appellate Division affirmed the denial of the motion, finding that defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law. Plaintiff testified at his deposition that he slipped due to a loose step on a stairway in a building owned by defendant. Any ambiguity in his testimony as to the cause of his fall is attributable to his attempt at humor and to the fact that he was testifying through an interpreter. In addition, defendant's superintendent testified that a step was loose on that stairway, and that it was repaired on the same day that plaintiff fell. The superintendent's uncertain testimony failed to eliminate any issue of fact as to which step was repaired or the time of the repair. The affidavit of defendant's managing member differed from the superintendent's testimony as to the time and location of the repair. In any event, the managing member's affidavit cannot be considered in support of the motion, because he did not indicate that the affidavit is based on his personal knowledge of the facts.
Student note: Plaintiff submitted a non-party's affidavit that raised a fact issue as to notice. Any discrepancy between the affidavit and the non-party's prior unsworn statement raises a credibility issue that cannot be resolved on a summary judgment motion.
Case: Almonte v. 638 W. 160 LLC, NY Slip Op 03584 (1st Dep't 2016)
Here is the decision.
Tomorrow's issue: The Noseworthy doctrine and an inference of negligence.
