Schnapper v. First Federal Savings & Loan Ass'n

210 A.D.2d 151, 621 N.Y.S.2d 852, 1994 N.Y. App. Div. LEXIS 12976

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1994
• Status: Published

Opinion

—Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about June 1, 1994, which denied defendant First Federal’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied because plaintiff, in opposition to the motion, submitted competent evidence that the revolving door in question moved at an excessive speed due to a defective braking device, which was the proximate cause of her injuries. There is no contradiction between plaintiffs deposition testimony and her opposing affidavit such that her affidavit must be disregarded (compare, Kistoo v City of New York, 195 AD2d 403). In addition, there is no inconsistency in plaintiffs expert’s report and his opposing affidavit, which was based upon information he obtained after the report. A trial is required to resolve the outstanding material issues of fact. Concur—Ellerin, J. P., Ross, Rubin, Nardelli and Williams, JJ.