| DiGiantomasso v City of New York |
| 2008 NY Slip Op 08268 [55 AD3d 502] |
| October 30, 2008 |
| Appellate Division, First Department |
| Rita DiGiantomasso, Respondent, v City of New York etal., Defendants, and Judlau Contracting, Inc., et al., Appellants. Rita DiGiantomasso,Respondent, v City of New York et al., Defendants, and Felix Associates, LLC,Appellant. |
—[*1] Lewis, Johs, Avallone, Aviles, LLP, Melville (Michael G. Kruzynski of counsel), forLiro-Kassner, Inc., appellant. Rubin, Fiorella & Friedman LLP, New York (Shelley R. Halber of counsel), for FelixAssociates, LLC, appellant. Friedman & Moses, LLP, New York (I. Bryce Moses of counsel), for respondent.
Orders, Supreme Court, New York County (Eileen A. Rakower, J.), entered December 5,2007 and January 9, 2008, which, in an action for personal injuries sustained in a trip and fallallegedly caused by a raised manhole cover in a street intersection, denied defendants-appellants'motions for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff filed a notice of claim against defendant City, and, four months after the accident, ata General Municipal Law § 50-h examination, unequivocally testified that she had trippedover a manhole cover that was protruding approximately 2½ inches above the ground.Plaintiff and the City were the only parties present at the section 50-h examination, and it is [*2]undisputed that no notice thereof was given todefendants-appellants, a contractor who had allegedly performed a water main installation in theintersection, and a contractor and resident engineer for a street resurfacing project that hadallegedly included the intersection. At a deposition held almost three years after the accident,plaintiff testified that she was unable to say with certainty that she knew, on the day of theaccident, that she had tripped over a manhole cover, but rather made that determination withcertainty when she returned to the scene of the accident three weeks after the accident, andalthough she may have made that determination before the day she returned three weeks later,perhaps even as early as the day of the accident, she could not say for sure.
Appellants argue that plaintiff's section 50-h testimony is hearsay as to them and thereforemay not be considered for the purpose of identifying the cause of plaintiff's fall, in opposition totheir motions for summary judgment (citing, inter alia, Fernandez v VLA Realty, LLC,45 AD3d 391 [2007] [defendant property owners entitled to summary judgment where plaintiffcould not identify cause of fall at his deposition]). While appellants did not have the opportunityto cross-examine plaintiff at the section 50-h examination itself, their argument, which relies onClaypool v City of New York (267 AD2d 33 [1999] [plaintiffs' decedent's section 50-htestimony could not be used against defendant property owners where latter were not notified ofsection 50-h examination and did not take decedent's deposition before she died]), overlooks thatappellants did have an opportunity to cross-examine plaintiff about her section 50-h testimony ather later deposition. But even if plaintiff's section 50-h testimony were deemed inadmissiblehearsay as to appellants, it was not the only evidence that plaintiff offered on the issue ofcausation in opposition to appellants' motions, and it thus may be considered along with theadmissible deposition testimony (see Matter of New York City Asbestos Litig., 7 AD3d285, 285 [2004] ["evidence otherwise excludable at trial may be considered in opposition to amotion for summary judgment as long as it does not become the sole basis for the court'sdetermination"]). In order to survive appellants' motions for summary judgment, plaintiff was notrequired to state for certain that she knew exactly what she tripped over the very instant that shetripped over it. To the extent that plaintiff's deposition testimony in this regard was vague orinconsistent with her section 50-h testimony, a credibility issue is raised to be decided by thejury, not the court on a motion for summary judgment. Certainly, plaintiff's deposition testimony,in conjunction with her section 50-h testimony, is more than sufficient to identify a protrudingmanhole cover as the cause of her trip and fall; indeed, plaintiff's deposition testimony would besufficient in that regard even if considered alone. Concur—Mazzarelli, J.P., Williams,Buckley and Renwick, JJ.