The Second Department determined plaintiff's deposition testimony raised a question of fact whether plaintiff slipped and fell because of water on the floor near a sink in defendant's nursing home. The testimony was submitted by the defendant in support of its summary judgment motion. The defendant argued there was no proof water was on the floor. However, by submitting plaintiff's deposition testimony, which presented circumstantial evidence of water on the floor, defendant was unable to make out a prima facie case:
In moving for summary judgment, the defendant argued, inter alia, that there was no evidence that water was on the floor. In support of its motion, the defendant submitted, inter alia, the plaintiff's deposition testimony, in which he testified that a nurse washes his roommate every morning, he has personally observed water spill on the floor when that happens, and he has complained about such condition at least 10 times in the past. The plaintiff further testified that he heard his roommate being cared for and someone walking back and forth from the sink to his roommate that morning, and that the roommate's shirt was wet after the accident. Such evidence, although circumstantial, permits a reasonable inference that the nurse washed the plaintiff's roommate that morning and spilled water on the floor, which proximately caused the plaintiff to fall… . Accordingly, the defendant failed to meet its prima facie burden on its motion for summary judgment, and the Supreme Court properly denied its motion without regard to the sufficiency of the plaintiffs' opposition papers … . Simion v Franklin Ctr. for Rehabilitation & Nursing, Inc., 2018 NY Slip Op 00184, Second Dept 1-10-18
NEGLIGENCE (SLIP AND FALL, SUMMARY JUDGMENT, BY SUBMITTING PLAINTIFF'S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT'S SUMMARY JUDGMENT MOTION, DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT))/EVIDENCE (SLIP AND FALL, SUMMARY JUDGMENT, BY SUBMITTING PLAINTIFF'S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT'S SUMMARY JUDGMENT MOTION, DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT))/SLIP AND FALL (SUMMARY JUDGMENT, BY SUBMITTING PLAINTIFF'S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT'S SUMMARY JUDGMENT MOTION, DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT))/SUMMARY JUDGMENT (NEGLIGENCE, SLIP AND FALL, EVIDENCE, BY SUBMITTING PLAINTIFF'S DEPOSITION TESTIMONY IN SUPPORT OF DEFENDANT'S SUMMARY JUDGMENT MOTION, DEFENDANT FAILED TO MAKE OUT A PRIMA FACIE CASE IN THIS SLIP AND FALL CASE, THE MOTION WAS PROPERLY DENIED WITHOUT CONSIDERATION OF THE OPPOSING PAPERS (SECOND DEPT))