You are here: / / IN THIS SLIP AND FALL CASE, PLAINTIFF’S 50-H EXAMINATION TESTIMONY...
, ,

IN THIS SLIP AND FALL CASE, PLAINTIFF’S 50-H EXAMINATION TESTIMONY DIRECTLY CONTRADICTED HIS AFFIDAVIT OPPOSING THE CITY’S SUMMARY JUDGMENT MOTION; THE “FEIGNED ISSUE OF FACT” DID NOT RAISE A QUESTION OF FACT (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the city’s motion for summary judgment in this slip and fall case should have been granted. Plaintiff’s affidavit in opposition directly contradicted his testimony at the General Municipal Law 50-h examination:

“[A] defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing, inter alia, that it did not create the alleged hazardous condition” … . Here, the defendant made a prima facie showing that it did not engage in any snow removal activity within the subject triangular area, and therefore was not responsible for creating the icy condition that caused the plaintiff to fall. In opposition to the defendant’s motion, the plaintiff submitted an affidavit in which he averred that, in the afternoon of the day before his accident, he “observed City personnel shoveling the snow from the [subject triangular area] and making piles of snow upon the perimeters.” Yet, at his examination pursuant to General Municipal Law § 50-h, the plaintiff had been asked “At any point between the snowfall and the morning before the accident happened, had you seen anyone clearing snow from that [triangular area],” and he had responded “No, no.” Since the assertion made for the first time in the plaintiff’s affidavit directly contradicted the testimony he had given at his General Municipal Law § 50-h examination, and he has not provided a plausible explanation for the inconsistency between the two statements, the assertion made in his affidavit must be viewed as presenting a feigned factual issue designed to avoid the consequences of his earlier testimony, and it is insufficient to raise a triable issue of fact … . Nass v City of New York, 2022 NY Slip Op 06132, Second Dept 11-2-22

Practice Point: Here the plaintiff’s 50-h examination testimony directly contradicted his affidavit opposing defendant’s motion for summary judgment. The “feigned issue of fact” did not raise a question of fact.

 

You might also like
DISCLOSURE OF WITNESS CONTACT INFORMATION SHOULD HAVE BEEN DELAYED UNTIL 15 DAYS BEFORE TRIAL (SECOND DEPT).
Late Notice of Claim Allowed in Absence of Reasonable Excuse
AFTER AN IMPORTANT PLAINTIFFS’ WITNESS BECAME ILL DURING CROSS-EXAMINATION AND WAS TAKEN BY AMBULANCE TO THE HOSPITAL, THE JUDGE, SUA SPONTE, DECLARED THE WITNESS UNAVAILABLE, STRUCK HIS TESTIMONY AND ADMITTED HIS DEPOSITION TESTIMONY; THERE WAS NO SUPPORT IN THE RECORD FOR THE FINDING THE WITNESS WOULD BE UNABLE TO TESTIFY; JUDGMENT REVERSED (SECOND DEPT).
FAMILY COURT SHOULD NOT HAVE RELIEVED MOTHER’S COUNSEL WITHOUT NOTICE TO MOTHER, THEREFORE FAMILY COURT SHOULD NOT HAVE ENTERED A DEFAULT JUDGMENT UPON MOTHER’S FAILURE TO APPEAR, BECAUSE THE DEFAULT JUDGMENT SHOULD NOT HAVE BEEN ENTERED, APPEAL WAS THE PROPER REMEDY (SECOND DEPT). ​
DEFENDANT CORPORATION IN THIS FORECLOSURE ACTION RAISED A QUESTION OF FACT ABOUT WHETHER THE PERSON WHO SIGNED THE LOAN DOCUMENTS ON BEHALF OF THE CORPORATION HAD THE APPARENT AUTHORITY TO DO SO; PLAINTIFF CANNOT RELY SOLELY ON THE PURPORTED AGENT’S ASSERTIONS OF AUTHORITY, BUT RATHER MUST MAKE A REASONABLE INQUIRY (SECOND DEPT).
COURT’S LIMITED POWER TO REVIEW AN ARBITRATION AWARD SUCCINCTLY STATED.
THERE REMAINED QUESTIONS OF FACT WHETHER DEFENDANTS CREATED THE ICY CONDITION AND WHETHER THEY HAD CONSTRUCTIVE NOTICE OF THE CONDITION; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
NO ONE AT THE DEFENDANT HEALTH CLUB WHEN PLAINTIFF’S DECEDENT SUFFERED A HEART ATTACK WAS CERTIFIED TO PROVIDE EMERGENCY AID AND THE EMPLOYEE DELAYED CALLING 911; PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CHANGED CIRCUMSTANCES RENDERED THE RECORD ON APPEAL INADEQUATE IN THIS CHILD... THE EXPERT DISCLOSURE COMBINED WITH THE BILL OF PARTICULARS GAVE SUFFICIENT...