In this slip and fall case, the Second Department determined Supreme Court should not have rejected affidavits submitted by the plaintiff in opposition to a summary judgment motion because of inconsistencies. The affidavits were from witnesses who saw plaintiff fall and who were able to identify the cause of plaintiff’s fall. In the context of a summary judgment motion, assessing credibility is not the court’s function:
Here, the defendant established, prima facie, his entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, which demonstrated that she was unable to identify the cause of her fall … . However, in opposition to the defendant’s prima facie showing on this ground, the plaintiff raised a triable issue of fact. The plaintiff’s submissions included affidavits from two individuals who witnessed the accident and identified the cause of her fall … . The Supreme Court erred in rejecting these two eyewitness affidavits on the ground that they gave inconsistent accounts of the accident. “It is not the court’s function on a motion for summary judgment to assess credibility” …, and any inconsistencies in the affidavits of the two eyewitnesses did not render them both incredible as a matter of law, but rather, raised issues of credibility to be resolved by the factfinder … . McRae v Venuto, 2016 NY Slip Op 00944, 2nd Dept 2-10-16
NEGLIGENCE (AFFIDAVITS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN REJECTED ON CREDIBILITY GROUNDS)/CIVIL PROCEDURE (AFFIDAVITS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN REJECTED ON CREDIBILITY GROUNDS)/EVIDENCE (AFFIDAVITS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN REJECTED ON CREDIBILITY GROUNDS)