Gitelman v. Jewish Home & Hospital

295 A.D.2d 210, 744 N.Y.S.2d 18, 2002 N.Y. App. Div. LEXIS 6568

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 2002
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Bertram Katz, J.), entered January 4, 2002, which, in an action for personal injuries sustained when plaintiff slipped and fell on premises operated by defendant as a day center for older individuals, denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The affidavit of plaintiff’s husband that he saw a 12-inch by 12-inch sticky substance in the area where plaintiff fell about an hour before she fell raises issues of fact as to whether the sticky substance that plaintiff saw on her hand after she fell was the cause of her fall, and, if so, whether it was present for a sufficient length of time for defendant to have discovered and remedied it (see, Gordon v American Museum of Natural History, 67 NY2d 836). Nothing about this affidavit indicates that it was tailored to avoid summary judgment or otherwise is demonstrably false. The deposition testimony of defendant’s employee that the floor was clean immediately before and immediately after the accident does no more than raise an issue of credibility precluding summary judgment treatment. Concur—Nardelli, J.P., Mazzarelli, Sullivan, Rosenberger and Marlow, JJ.