Accardo v. Metro–North R.R.

• Decision Date: 28 February 2013
• Citation: 103 A.D.3d 589,959 N.Y.S.2d 696,2013 N.Y. Slip Op. 01324
• Parties: Janet H. ACCARDO, Plaintiff–Respondent, v. METRO–NORTH RAILROAD, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 589

959 N.Y.S.2d 696

2013 N.Y. Slip Op. 01324

Janet H. ACCARDO, Plaintiff–Respondent,

v.METRO–NORTH RAILROAD, Defendant–Appellant.

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

Feb. 28, 2013.

Seth J. Cummins, New York (Jesse A. Raye of counsel), for appellant.

Gregory W. Bagen, Brewster, for respondent.

TOM, J.P., SWEENY, RENWICK, ABDUS–SALAAM, MANZANET–DANIELS, JJ.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered on or about May 17, 2012, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Summary judgment was properly denied in this action where plaintiff was injured when, while stepping off defendant's train, she slipped and fell on an icy condition on the platform. The expert's report, submitted in support of defendant's motion, was unsworn, and thus, not in admissible form. This was an error that could not be cured by submitting a sworn affidavit by this expert in reply papers ( see Damas v. Valdes, 84 A.D.3d 87, 95–96, 921 N.Y.S.2d 114 [2d Dept. 2011];see also Batista v. Santiago, 25 A.D.3d 326, 807 N.Y.S.2d 340 [1st Dept. 2006] ). Moreover, the record presents triable issues as to whether, since the cessation of the storm, defendant had a reasonable amount of time to remedy the icy-wet conditions at the station where plaintiff fell ( see Powell v. MLG Hillside Assoc., 290 A.D.2d 345, 737 N.Y.S.2d 27 [1st Dept. 2002] ).