Pagan v. New York City Housing Authority

166 A.D.2d 390

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 30, 1990
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 14, 1989, denying defendant’s motion for summary judgment dismissing plaintiffs’ complaint, unanimously affirmed, without costs.

In light of the state of mental retardation of the infant plaintiff and his inability to speak, plaintiffs have tendered an acceptable excuse for not offering his statement with respect to the conditions existing at the time of his slip and fall upon the rampway used to transport garbage out of the defendant’s building. The infant’s mother’s affidavit interpreting the hand language of the infant was sufficient. In addition, the statement by the infant’s mother with respect to the length of time that the wood and debris which allegedly caused the accident remained upon the rampway, while somewhat contrary to her testimony during the 50-h hearing before trial, is not incredible as a matter of law, and raises an issue of credibility which should be determined at trial. Concur—Ross, J. P., Milonas, Asch, Ellerin and Rubin, JJ.