De La Cruz v. Lettera Sign & Elec. Co.
Decision Date | 26 October 2010 |
Citation | 909 N.Y.S.2d 448,77 A.D.3d 566 |
Parties | Adolfo DE LA CRUZ, Plaintiff-Appellant, v. LETTERA SIGN & ELECTRIC CO., et al., Defendants-Respondents. |
Court | New York Supreme Court — Appellate Division |
77 A.D.3d 566
Adolfo DE LA CRUZ, Plaintiff-Appellant,
v.
LETTERA SIGN & ELECTRIC CO., et al., Defendants-Respondents.
Supreme Court, Appellate Division, First Department, New York.
Oct. 26, 2010.
The Neveloff Law Firm, PC, New York (Daniel I. Neveloff of counsel), for appellant.
Camacho Mauro & Mulholland, LLP, New York (Kathleen Mulholland of counsel), for respondents.
ANDRIAS, J.P., NARDELLI, MOSKOWITZ, DeGRASSE, ROMÁN, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about July 10, 2009, which, in an action for personal injuries allegedly sustained when plaintiff slipped on an icy sidewalk abutting defendants' factory premises, granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion for summary judgment denied, and the complaint reinstated.
The testimony of defendant company's president regarding the company's general snow and ice removal procedures fails to satisfy defendants' initial burden of showing that they acted reasonably and lacked notice of the icy condition. Because the president has no personal knowledge of any snow or ice removal efforts taken on the day of plaintiff's fall, his testimony is not probative of the care actually exercised by defendants on that date ( see Martinez v. Khaimov, 74 A.D.3d 1031, 1033, 906 N.Y.S.2d 274 [2010]; Lebron v. Napa Realty Corp., 65 A.D.3d 436, 437, 884 N.Y.S.2d 37 [2009] ), and because he has no personal knowledge of when defendants' employees last inspected the sidewalk or of the sidewalk's appearance before the accident, his testimony is not probative of lack of actual or constructive notice ( see Martinez, 74 A.D.3d at 1033-1034, 906 N.Y.S.2d 274; Lebron, 65 A.D.3d at 437, 884 N.Y.S.2d 37; Baptiste v. 1626 Meat Corp., 45 A.D.3d 259, 259, 844 N.Y.S.2d 271 [2007] ). Nor may defendants rely on their foreman's affidavit, which was improperly submitted for the first time in their reply ( see Lumbermens Mut. Cas. Co. v. Morse Shoe Co., 218 A.D.2d 624, 626, 630 N.Y.S.2d 1003 [1995] ); in any event, the foreman's affidavit is framed in the conditional tense-it speaks to what the foreman "would have" done in the way of snow removal on the date of plaintiff's accident, not to what he actually did-and thus does not materially add to the president's generalized testimony about company's snow removal practices. Even assuming that...
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