Monday, June 9, 2014

Admissible evidence in opposition to a summary judgment motion.

Practice point:  The Appellate Division found that plaintiff's deposition testimony that he was employed by a nursing home in 1998 when he was arrested, together with his bill of particulars, were sufficient to raise a triable issue of fact as to whether he sustained pecuniary losses resulting from defendants' alleged legal malpractice.

The Appellate Division also found that defendants failed to preserve their argument that plaintiff may not rely upon his deposition testimony since such deposition was taken in an action in which they were not parties and were not represented. In any event, the argument is unavailing, as defendants' absence at the time of the deposition merely renders the deposition transcript hearsay as to them, and hearsay evidence may be considered to defeat a motion for summary judgment, as long as it is not the only evidence submitted in opposition.

Student note:  Plaintiff also submitted his bill of particulars, and factual allegations contained in a verified bill of particulars may be considered in opposition to a motion for summary judgment.

Case:  Fountain v. Ferrara, NY Slip Op 0347 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: The Sidewalk Law.