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PLAINTIFF’S INCONSISTENT DEPOSITION TESTIMONY IN THIS STAIRWAY SLIP AND FALL CASE RAISED A CREDIBILITY QUESTION BUT DID NOT REQUIRE SUMMARY JUDGMENT IN DEFENDANT’S FAVOR; PLAINTIFF’S TESTIMONY SHE DID NOT USE THE HANDRAILS REQUIRED DISMISSAL OF THE CLAIM ALLEGING THE HANDRAILS WERE DEFECTIVE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court in this stairway slip and fall case, determined the plaintiff’s inconsistent deposition testimony raised an issue of credibility but did not warrant summary judgment dismissing the action. However the claim relating to the handrails of the should have been dismissed because plaintiff testified she did not use the handrails:

While plaintiff’s initial deposition testimony was later contradicted by the affidavit she submitted in opposition to defendant’s motion, after a break in the deposition, she testified that she had misspoken, and changed her testimony significantly as to how her fall on defendant’s staircase occurred. Plaintiff’s latter version of the accident is, in the main, consistent with her affidavit. Thus, while the change of testimony mid-deposition presents an issue of credibility for the jury, the affidavit does not present the kind of feigned issue of fact that requires the court to disregard the affidavit … . Since plaintiff’s expert relied upon the version of the accident described in plaintiff’s affidavit, his affidavit was properly considered … . Plaintiff’s inability to identify uneven riser heights as the cause of her fall is not fatal to her claim, as her post-break deposition testimony permits the inference that her fall was caused by uneven riser heights … .

However, plaintiff’s affidavit presents a feigned issue of fact as to whether her fall was caused by any defect of the staircase handrails and must be disregarded with respect thereto … . Plaintiff testified consistently through the entirety of her deposition that she was not holding the handrail, that it was her custom and practice not to use handrails on short flights of steps, and that at no time during her fall did she attempt, or even think of attempting, to put her hand on the handrail. Dixon v Sum Realty, Co., 2021 NY Slip Op 00367, First Dept 1-21-21

 

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