Silva v. 81st Street & Ave. A Corp.

• Decision Date: 08 January 1991
• Citation: 169 A.D.2d 402,564 N.Y.S.2d 326
• Court: New York Supreme Court — Appellate Division
• Parties: Edward T. SILVA, et ano., Plaintiffs-Respondents, v. 81ST STREET & AVENUE A CORP., et al., Defendants-Appellants.

Page 326

564 N.Y.S.2d 326

169 A.D.2d 402

Edward T. SILVA, et ano., Plaintiffs-Respondents, v. 81ST STREET & AVENUE A CORP., et al., Defendants-Appellants [And a Third-Party Action.]

Supreme Court, Appellate Division First Department.

Jan. 8, 1991.

Before MURPHY, P.J., and KUPFERMAN, SULLIVAN, WALLACH and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Kristin Booth Glen, J.), entered March 7, 1990, which, inter alia, denied defendants' cross-motion for summary judgment, unanimously reversed, on the law, the cross-motion granted, and the action is dismissed, without costs. The clerk is directed to enter judgment dismissing the complaint.

On January 15, 1984, plaintiff fell from a roof atop a Yorkville restaurant approximately two stories high. Sustaining serious injuries, he has brought this action against the corporate owners of the premises. The ground floor and basement of the premises were occupied by the eating place in which plaintiff worked as a manager. Defendants are the landlords of plaintiff's employer.

Plaintiff's proof, by way of affidavit and testimony at his EBT, was that the weather conditions that day were icy, and that in the late afternoon a restaurant customer complained that water was leaking onto his table. Since plaintiff had been on the roof "at least eight or nine times" in the past to clean a clogged drain there, and he believed the leak was once again due to this circumstance, he unchained a ladder kept in the rear of the premises and climbed up onto the roof. After cleaning the drain, and waiting on the roof for about fifteen minutes to ascertain that the water leakage had abated, plaintiff, in his deposition taken December 2, 1987, described his subsequent movements beginning with stepping over a low railing "approximately a foot and a half high" around the perimeter of the roof and his descent therefrom as follows:

"A I would hold onto the iron railing, straddle with one leg, then straddle the other leg, get both on the other side of the iron railing, and holding onto the railing, I proceeded to take one step onto the first rung of the ladder.

Q So at one time both of your feet are on the outside of the iron railing?

A That's right.

Q How wide is that area?

A I'd say about twenty, twenty-four inches wide.

Q And you would step onto the ladder and proceed down?

A Yes.

Q Did you actually step onto the ladder on January 15, on this day?

A I don't remember.

Q What was the last thing you do remember?

A Straddling over the iron grate, the iron railing.

Q Do you remember losing your balance?

A It's a blur to me. I don't remember anything anymore.

Q So the last thing you remember is you had both feet on the outside of the iron railing? Or not even that far?

A Not even that far.

Q Tell me the exact last thing you recall, then.

A Facing the iron railing.

Q Facing from which direction? From on the roof?

A From on the roof as you would go over or get ready to go over the iron railing.

Q Do you remember putting one foot over the railing?

A There are sometimes that I do it late at night in a dream, but I don't know if it's a recollection or a dream or--

Q How about today?

A It's a blank.

Q Do you remember holding onto the railing?

A Yeah, that's about the last thing I remember.

Q What is the next thing you remember after that part?

A Feeling very cold, laying on the ground."

It is clear from the testimony that plaintiff had no recollection of the accident ("It's a blank") and was, at best, testifying primarily as to his prior course of conduct. In his affidavit on the motion, sworn to over two and one-half years later on June 30, 1989, he was more specific, as follows:

"... When the roof was almost completely empty of water, I then proceeded to head down the ladder. The busboy was not there. In order to descend, I straddled the iron railing and then held on to the iron railing and proceeded to take one step on to the first rung of the ladder. That is the last thing that I remember. I do remember facing the iron railing and holding on to the railing. The next thing that I remember is feeling very cold and lying on the ground...."

Thus on the first occasion of his oral examination plaintiff did not remember ever clearing the perimeter railing, much less making foot contact with the ladder. In his later affidavit he states that he "proceeded to take one step on to the first rung of the ladder," but no explanation is proffered as to what enhanced his recollection on this score.

It is, of course, the ordinary rule that where a plaintiff has offered two versions of an accident, only one of which would cast the defendant in liability, the inconsistency presents a question for the trier of fact (Russell v....