Eyewitness Affidavits Save Slip-and-Fall Case From Summary Judgment Dismissal

In McRae v. Venuto, No. 2014-10748, 2016 WL 515794 (N.Y. App. Div. 2nd Dept. Feb. 10, 2016), the court held that plaintiff raised a triable issue of fact on her slip-and-fall case:

Here, the defendant established, prima facie, his entitlement to judgment as a matter of law by submitting the deposition testimony of the plaintiff, which demonstrated that she was unable to identify the cause of her fall (see Mottola v. Harvest on Hudson, LLC, 122 AD3d 914, 914; Montemarano v. Sodexo, Inc., 121 AD3d at 1060). However, in opposition to the defendant’s prima facie showing on this ground, the plaintiff raised a triable issue of fact. The plaintiff’s submissions included affidavits from two individuals who witnessed the accident and identified the cause of her fall (see Vazquez v. Flesor, 128 AD3d 808, 810; Izaguirre v. New York City Tr. Auth., 106 AD3d at 878). The Supreme Court erred in rejecting these two eyewitness affidavits on the ground that they gave inconsistent accounts of the accident. “It is not the court’s function on a motion for summary judgment to assess credibility” (Ferrante v. American Lung Assn., 90 N.Y.2d 623, 631), and any inconsistencies in the affidavits of the two eyewitnesses did not render them both incredible as a matter of law, but rather, raised issues of credibility to be resolved by the factfinder (see generally Frazier v. Hertz Vehs., LLC, 78 AD3d 767, 768; 6243 Jericho Realty Corp. v. AutoZone, Inc., 27 AD3d 447, 449; Venetal v. City of New York, 21 AD3d 1087, 1088; Granados v. New York City Hous. Auth., 255 A.D.2d 249, 250). Accordingly, the court should have denied the defendant’s motion for summary judgment dismissing the complaint.

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