Ruffin v. Chase Manhattan Bank

66 A.D.2d 549, 886 N.Y.S.2d 338

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 20, 2009
• Status: Published

Opinions

Order, Supreme Court, New York County (Donna M. Mills, J.), entered June 16, 2008, which, in an action for personal injuries sustained in a fall on a staircase, insofar as appealed from, denied defendants-appellants’ motion for summary judgment dismissing the complaint as against them, affirmed, without costs.

Defendants’ argument that they are entitled to summary judgment on the basis of plaintiff’s deposition testimony that she does not know what caused her to fall places undue reliance on an isolated portion of plaintiffs testimony (see Shechter v City of New York, 17 AD3d 124, 124-125 [2005]; Garcia v New York City Tr. Auth., 269 AD2d 142, 142-143 [2000]). Although plaintiff at her deposition at first testified that she did not know what caused her to fall, the transcript shows that she immediately expressed the desire to clarify that response but was cut off by her examiner. Viewed as a whole, plaintiffs testimony, including the answers she gave to her own attorney’s questions as well as other portions of her main examination, is entirely consistent with her affidavit in opposition, which states that she slipped because “the steps were not completely covered by nonskid material,” that is, “on the portion of the step that was not covered by non-skid material.” Given defendants’ failure to rebut the affidavit of plaintiffs expert opining that this aspect of the stairs’s design was not compliant with the Building Code of the City of New York, the motion for summary judgment was properly denied. Concur—Tom, J.P., Friedman, Moskowitz and Richter, JJ.