Accardo v. Metro-North Railroad

103 A.D.3d 589, 959 N.Y.S.2d 696

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County (Richard F. Braun, J.), entered on or about May 17, 2012, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff was injured when, while stepping off defendant’s train, she slipped and fell on an icy condition on the platform. The expert’s report, submitted in support of defendant’s motion, was unsworn, and thus, not in admissible form. This was an error that could not be cured by submitting a sworn affidavit by this expert in reply papers (see Damas v Valdes, 84 AD3d 87, 95-96 [2d Dept 2011]; see also Batista v Santiago, 25 AD3d 326 [1st Dept 2006]). Moreover, the record presents triable issues as to whether, since the cessation of the storm, defendant had a reasonable amount of time to remedy the icy-wet conditions at the station where plaintiff fell (see Powell v MLG Hillside Assoc., 290 AD2d 345 [1st Dept 2002]). Concur—Tom, J.P., Sweeny, Renwick, Abdus-Salaam and Manzanet-Daniels, JJ.