Wednesday, May 25, 2016

A fall, summary judgment, and the admissibility of affidavits.

Practice point:  The Appellate Division reversed, and granted defendant's motion dismissing the complaint in this action where plaintiff alleges that he was injured when he fell down the stairs in defendants' building.

Defendants established their entitlement to judgment as a matter of law by submitting plaintiff's deposition testimony where he stated that while climbing the subject stairs, he suddenly felt dizzy and weak, heard the "noise of a paper," and remembered nothing else until he later awoke in the hospital. He was twice asked whether he knew, or ever learned, what caused him to fall, and each time answered that he did not. Nowhere else in his testimony did plaintiff identify the cause of his fall.

Student note:  Plaintiff's affidavit, where he claimed that he slipped and fell on paper restaurant menus strewn on defendants' stairs, was inadmissable, as plaintiff testified he neither spoke, read nor wrote in English, yet his affidavit was unaccompanied by a translator's affidavit attesting to its accuracy, as required by CPLR 2101(b).

Case:  Peralta-Santos v. 350 W. 49th St. Corp., NY Slip Op 03966 (1st Dep't May 19, 2016)

Here is the decision.

Tomorrow's issue:  An action to foreclose a mortgage.