Doumbia v. City of New York

Appellate Division of the Supreme Court of New York

Doumbia v. City of New York

78 A.D.3d 587, 913 N.Y.S.2d 24

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 30, 2010

StatusPublished

This text of 78 A.D.3d 587 (Doumbia v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Doumbia v. City of New York, 78 A.D.3d 587, 913 N.Y.S.2d 24 (N.Y. Ct. App. 2010).

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Opinion

Order, Supreme Court, Bronx County (Paul A. Victor, J.), entered August 31, 2009, which, in an action for personal injuries sustained when plaintiff was struck by a hit-and-run vehicle while walking in a roadway undergoing reconstruction, granted plaintiffs motion to renew a prior order, same court and Justice, entered January 6, 2006, which had granted defendant-appellant construction company’s motion for summary judgment dismissing the complaint as against it, and, upon renewal, denied the motion, unanimously affirmed, without costs.

Even if, as defendant argues, plaintiffs newly offered evidence on renewal, consisting mostly of admissions allegedly made by defendant’s principal that the temporary pedestrian walkway was closed on the day of the accident, was available at the time of the prior motion in the sense that the admissions could have been elicited at the principal’s pre-motion deposition, and therefore not technically new, the circumstances warrant relaxation of that requirement and consideration of the alleged admissions in the interest of justice (see Atiencia v MBBCO II, LLC, 75 AD3d 424, 424-425 [2010]). More particularly, defendant’s prior motion for summary judgment should have been denied as plaintiff’s testimony, by itself, was sufficient to raise issues of fact not only as to whether there was adequate signage directing pedestrian traffic to the walkway, [588]*588but indeed whether the walkway was closed, and the newly offered admissions merely provide additional support for finding an issue of fact in the latter regard. Also bearing on the interest of justice is the trial justice’s subsequent order that, on constraint of the prior order, dismissed the action as against the other remaining defendants. We have considered defendant’s other contentions and find them unavailing. Concur — Gonzalez, P.J., Mazzarelli, Nardelli, Renwick and DeGrasse, JJ.

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Order, Supreme Court, Bronx County (Paul A. Victor, J.), entered August 31, 2009, which, in an action for personal injuries sustained when plaintiff was struck by a hit-and-run vehicle while walking in a roadway undergoing reconstruction, granted plaintiffs motion to renew a prior order, same court and Justice, entered January 6, 2006, which had granted defendant-appellant construction company’s motion for summary judgment dismissing the complaint as against it, and, upon renewal, denied the motion, unanimously affirmed, without costs.

Even if, as defendant argues, plaintiffs newly offered evidence on renewal, consisting mostly of admissions allegedly made by defendant’s principal that the temporary pedestrian walkway was closed on the day of the accident, was available at the time of the prior motion in the sense that the admissions could have been elicited at the principal’s pre-motion deposition, and therefore not technically new, the circumstances warrant relaxation of that requirement and consideration of the alleged admissions in the interest of justice (see Atiencia v MBBCO II, LLC, 75 AD3d 424, 424-425 [2010]). More particularly, defendant’s prior motion for summary judgment should have been denied as plaintiff’s testimony, by itself, was sufficient to raise issues of fact not only as to whether there was adequate signage directing pedestrian traffic to the walkway, [588]*588but indeed whether the walkway was closed, and the newly offered admissions merely provide additional support for finding an issue of fact in the latter regard. Also bearing on the interest of justice is the trial justice’s subsequent order that, on constraint of the prior order, dismissed the action as against the other remaining defendants. We have considered defendant’s other contentions and find them unavailing. Concur — Gonzalez, P.J., Mazzarelli, Nardelli, Renwick and DeGrasse, JJ.

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Bluebook (online)

78 A.D.3d 587, 913 N.Y.S.2d 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doumbia-v-city-of-new-york-nyappdiv-2010.

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