Hartford v. Seneca Meadows, Inc.

175 A.D.2d 581

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1991
• Docket: Appeal No. 2
• Status: Published

Opinion

— Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following Memorandum: The summary judgment motions of Syracuse and Weldtec should have been granted in their entirety. The moving defendants sustained their initial burden of demonstrating, as a matter of law, that they cannot be held liable for plaintiff’s injuries. They submitted plaintiff’s EBT testimony, in which he unequivocally admitted that he slipped or tripped in the middle of the old scale, while he was several steps away from the new scale manufactured and installed by defendants. Plaintiff testified that the new scale was not involved in the accident. Plaintiff’s unequivocal admissions against his own interest are competent to establish the moving defendants’ entitlement to judgment by demonstrating the lack of causal relationship between the alleged defects in the new scale and plaintiff’s injuries.

Plaintiff’s and Seneca’s showing in opposition was insufficient to defeat the motions. San Pietro’s EBT testimony, that plaintiff fell either on the old scale or on the new scale, indicates merely the witness’s inability to recall or describe the fall, and does not raise a question of fact. The EBT testimony of Booth perhaps raises a factual question but it is not a material question of fact. According to Booth, plaintiff slipped or fell from the gas tank or step of his cab and was not standing on the new scale when he fell. Thus, Booth’s testimony does not support the theory that plaintiff’s injuries were caused by the new scale. In the absence of evidence in the record to demonstrate that plaintiff fell on the new scale or that the new scale contributed to his injuries, Weldtec and Syracuse must be absolved of liability. (Appeals from Order of Supreme Court, Wayne County, Parenti, J. — Summary Judgment.) Present — Callahan, J. P., Denman, Boomer, Balio and Lowery, JJ.