| Arias v Skyline Windows, Inc. |
| 2011 NY Slip Op 07725 [89 AD3d 460] |
| November 3, 2011 |
| Appellate Division, First Department |
| Angelo G. Arias, Respondent, v Skyline Windows, Inc.,Appellant. (And a Third-Party Action.) |
—[*1] Trolman, Glaser & Lichtman, P.C., New York (Michael T. Altman of counsel), forrespondent.
Order, Supreme Court, New York County (Martin Shulman, J.), entered January 11, 2011,which denied defendant's motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Defendant failed to establish its prima facie entitlement to judgment as a matter of law in thisaction where plaintiff maintenance worker alleges that he was injured when, while pulling a trashcontainer, he slipped on broken glass and fell, resulting in the trash container rolling over hisfoot. Defendant was the company that had been hired to replace and install new windows at thebuilding where plaintiff worked. Defendant failed to demonstrate that its employees did notperform work at the location until after the day of the subject accident. Although an "affidavit[ ]indicating that a search of business records had demonstrated a negative is admissible" and cansubstantiate a summary judgment movant's initial burden (Dickson v City of New York, 43 AD3d 809 [2007]; seePiccinich v New York Stock Exch., 257 AD2d 438 [1999]), here, the affidavit of defendant'sdirector of field operations for volume was inconsistent with his own deposition testimony andindicated a lack of "familiarity with the . . . project at issue" (Barraillier v City of New York, 12AD3d 168, 169 [2004]).
Even were we to determine that defendant met its initial burden, plaintiff's opposition raisedtriable issues as to whether defendant's employees were responsible for creating the conditionthat caused his injuries. Plaintiff testified that he observed defendant's employees at the buildingin the days prior to the accident and the affidavit of plaintiff's coworker is consistent withplaintiff's testimony. Although defendant disputes the veracity of the coworker's affidavit, itstruth is presumed at this procedural posture where the court's duty is to find issues rather thandetermine them (see Powell v HISContrs., Inc., 75 AD3d 463, 465 [2010]).
We have considered defendant's remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Saxe, Acosta, DeGrasse and Manzanet-Daniels, JJ. [PriorCase History: 2011 NY Slip Op 30064(U).]