DeMilia v. DeMico Bros.

294 A.D.2d 264, 741 N.Y.S.2d 873, 2002 N.Y. App. Div. LEXIS 5510

Opinion

—Order, Supreme Court, Bronx County (Troy Webber, J.), entered March 13, 2001, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants, although pointing to perceived deficiencies in plaintiffs proof, failed to meet their initial burden as summary judgment movants to make out a prima facie entitlement to judgment as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557, 562; Rothbard v Colgate Univ., 235 AD2d 675, 678). In any event, plaintiff responded to defendants’ motion with sufficient evidence to raise a triable issue of fact. The description by plaintiffs decedent as to how the alleged accident occurred and the Fire Department accident report were admissible to oppose defendant’s motion for summary judgment, and are supported by plaintiffs sworn statements respecting her own observations of the debris in the area of the alleged accident. Moreover, the deposition testimony of the president of defendant DeMico Brothers established that excavation had taken place on the street in the location where the accident is claimed to have occurred approximately one month prior to the accident, and that DeMico was responsible for cleaning up subsequent to the excavation. It should be noted that plaintiff has not yet completed her efforts to interview and, if necessary, depose the firefighters who witnessed the accident and aided plaintiffs decedent. Concur—Williams, P.J., Nardelli, Rosenberger, Marlow and Gonzalez, JJ.