Valerio v. City of New York

23 A.D.3d 308, 804 N.Y.S.2d 312

Opinion

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered January 10, 2005, which, to the extent appealed from, denied defendant Triumph Construction’s motion for summary judgment with respect to the complaint and cross claims against it, unanimously affirmed, without costs.

The speculative and contradictory deposition testimony of Triumph’s officer/employee was insufficient to establish a prima facie entitlement to judgment as a matter of law. Moreover, whatever showing Triumph made was rebutted by plaintiff with admissible evidence in the form of street opening permits as well as the officer’s deposition testimony, raising a triable issue of fact (cf. James v Jamie Towers Hous. Co., 99 NY2d 639 [2003], affg 294 AD2d 268 [2002]). Concur—Saxe, J.P., Ellerin, Sweeny and Catterson, JJ.