Practice point: The movant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that (1) it neither created the hazardous condition that allegedly caused the plaintiff's injuries, nor had actual or constructive notice of that condition for a sufficient length of time to discover and remedy it, or (2) plaintiff cannot identify the cause of the accident. Here, the defendants failed to establish that the plaintiff was unaware of the location of his fall or what caused him to fall. In support of their motion, the defendants submitted a transcript of the plaintiff's deposition. In that deposition, the plaintiff clearly identified, through photographs, the location of his fall and the condition that allegedly caused it. Any conflicts between the plaintiff's original deposition and the errata sheets raised issues of credibility inappropriate for resolution on summary judgment.
Student note: As the defendants' failed to meet their prima facie burden, their motion will be denied, regardless of the sufficiency of the plaintiff's papers in opposition.
Case: Belton v. Gemstone HQ Realty Assoc., LLC, NY Slip Op 08491 (2d Dep't December 21, 2016)
Here is the decision.
Tomorrow's issue: Suspension of snow removal services for failure to pay maintenance fees.
