WINDOW INSTALLER'S (DEFENSE) SUMMARY JUDGMENT FAILS WHERE IT CAN'T SHOW INSPECTION OF WORK AREA PRE-ACCIDENT

Court: Supreme Court, Appellate Division, First Department, New York

Case: Arias v. Skyline Windows, Inc.

Date: Nov. 3, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens injury attorney)

Comment: Accident victim moving a garbage bin when he tripped on broken glass and got rolled-over by the dumpster. He sued a window installer which loses its (defense) summary judgment motion because it failed to show inspection of the area where it worked before the accident.

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RELATED POSTS:

DEFENSE DENIED SUMMARY JUDGMENT DISMISSALS IN BUILDING ACCIDENT CASE; DECISION GIVES NO CLUE GIVEN AS TO NATURE OF DEFECT THAT CAUSED ACCIDENT (Posted by Queens injury attorney Gary E. Rosenberg on Nov 19, 2011)

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Order, Supreme Court, New York County (Martin Shulman, J.), entered January 11, 2011, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant failed to establish its prima facie entitlement to judgment as a matter of law in this action where plaintiff maintenance worker alleges that he was injured when, while pulling a trash container, he slipped on broken glass and fell, resulting in the trash container rolling over his foot. Defendant was the company that had been hired to replace and install new windows at the building where plaintiff worked. Defendant failed to demonstrate that its employees did not perform work at the location until after the day of the subject accident. Although an "affidavit[ ] indicating that a search of business records had demonstrated a negative is admissible" and can substantiate a summary judgment movant's initial burden (Dickson v. City of New York, 43 A.D.3d 809, 842 N.Y.S.2d 27 [2007]; see Piccinich v. New York Stock Exch., 257 A.D.2d 438, 683 N.Y.S.2d 517 [1999]), here, the affidavit of defendant's director of field operations for volume was inconsistent with his own deposition testimony and indicated a lack of "familiarity with the ... project at issue" (Barraillier v. City of New York, 12 A.D.3d 168, 169, 784 N.Y.S.2d 55 [2004]).

Even were we to determine that defendant met its initial burden, plaintiff's opposition raised triable issues as to whether defendant's employees were responsible for creating the condition that caused his injuries. Plaintiff testified that he observed defendant's employees at the building in the days prior to the accident and the affidavit of plaintiff's coworker is consistent with plaintiff's testimony. Although defendant disputes the veracity of the coworker's affidavit, its truth is presumed at this procedural posture where the court's duty is to find issues rather than determine them (see Powell v. HIS Contrs., Inc., 75 A.D.3d 463, 465, 905 N.Y.S.2d 161 [2010]).

We have considered defendant's remaining contentions and find them unavailing.

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