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DEFENDANT UNABLE TO DEMONSTRATE PLAINTIFF DID NOT KNOW THE CAUSE OF HIS FALL; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED.

The First Department, over a dissent, determined defendant did not demonstrate, as a matter of law, that plaintiff did not know the cause of his slip and fall.  Therefore, defendant’s motion for summary judgment should not have been granted:

… [P]laintiff, who testified at his depositions through a Spanish interpreter, testified at his first deposition that upon exiting the convenience store he “stepped like on a hole,” and that he “stepped on something” on the defective ramp which caused his ankle to twist and him to fall to the ground. He further testified at that deposition that “[w]hen [he] stepped, it was that [he] felt like something — – that something was not right underneath,” “[l]ike [he] stepped on something not solid.” That plaintiff could not initially identify the location of his accident, based upon photographs he was shown at his first deposition that depicted only the bottom portion of a door with no other identifying features, is hardly surprising and not dispositive. Upon being shown, at his second deposition, additional photographs depicting the full entrance area and front of the convenience store, plaintiff was able to definitively identify and mark with an “X” the area on the ramp which was “not leveled” and caused him to fall … . Taveras v 1149 Webster Realty Corp., 2015 NY Slip Op 09192, 1st Dept 12-15-15

MONTHLY COMPILATION INDEX ENTRIES:

NEGLIGENCE (DEFENDANT DID NOT DEMONSTRATE PLAINTIFF DID NOT KNOW CAUSE OF HIS FALL)/SLIP AND FALL (DEFENDANT DID NOT DEMONSTRATE PLAINTIFF DID NOT KNOW THE CAUSE OF HIS FALL)

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