Appiarius v. Trump's Castle Associates

251 A.D.2d 275, 672 N.Y.S.2d 260, 1998 N.Y. App. Div. LEXIS 6347

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated November 18, 1997, as denied its cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The affidavit of Dr. Larry Friedman, submitted by the plaintiffs in opposition to the defendant’s cross motion for summary judgment, was based upon Dr. Friedman’s review of the injured plaintiffs medical records as well as upon the medical history which Dr. Friedman took from the injured plaintiff. Thus, contrary to the defendant’s contention, the conclusions set forth in the affidavit were based on evidence in the record (see generally, Hambsch v New York City Tr. Auth., 63 NY2d ). Moreover, the affidavit constituted evidence in admissible form sufficient to raise a triable issue of fact regarding whether the injured plaintiffs alleged fall on the defendant’s premises proximately caused the subsequent amputation of her leg (see generally, Zuckerman v City of New York, 49 NY2d 557). Similarly, the plaintiffs have demonstrated the existence of a triable issue of fact with respect to whether the defendant’s employees created or had actual or constructive notice of the alleged defective condition involved in this case (see, e.g., Meyler v First Natl. Supermarket, 238 AD2d 278). Accordingly, the Supreme Court properly denied the defendant’s cross motion for summary judgment. Miller, J. P., Sullivan, Friedmann and Luciano, JJ., concur.