A lady was walking on the sidewalk outside 44-04 Kissena Boulevard in Queens, New York on September 3, 2004. The sidewalk abutted the premises of a building which was leased by a bank and was managed by a building agent. The lady stepped on a plastic bag that was on the sidewalk and slipped. Her foot struck a rise on the sidewalk flagstone that was cracked and inclined slightly less than an inch. Her food jammed in the crack which resulted in her trip and fall.
The lady sued the bank for her injuries and the bank brought suit against the building agent who had a contractual obligation to indemnify the bank for any claim arising from negligence in maintaining the property.
The plaintiff was deposed and as her testimony was being taken, she was asked to identify photographs of the sidewalk and encircle where on the photographs she slipped and fell. The lady was unable to mark the exact location on the paragraphs. She was also unable to measure the height and depth of the crack or the rise in the flagstone.
The bank manager was also deposed and she testified that on the day of the lady’s accident, she saw the employees of the building agent sweeping the sidewalk and inspecting it. She said that she has never received any complaints regarding debris on the sidewalk or complaints regarding a cracked or uneven sidewalk.
After the depositions were taken, the bank and the building agent filed a motion for summary judgment alleging that the defect was too trivial to be actionable. They also assert that the plaintiff was unable to identify exactly where she tripped and fell. They maintain that the plaintiff has not given preliminary proof that there had been notice to the bank or to the building agent that there was a defect on the sidewalk.
The lady opposed the motion for summary judgment filed by the bank and the building agent. She claims that the evidence presented by the bank and the building agent are not admissible in form. She claims that the transcript of her deposition which was sent to her was incomplete and she refused to sign the transcript until the bank had sent her the copies of all the photographs which were marked as part of her deposition. The lady also stated that the deposition of the bank manager was also unsigned. Thus, she asks that the motion for summary judgment be denied because the evidence presented in support of the motion for summary judgment was not in admissible form.
In resolving the issue of whether or not the bank is entitled to a summary judgment, the Court reiterated the rule that evidence presented in support of the motion for summary judgment must be in admissible form. In this case, the depositions must be signed by the party who testified. The Court observed that the bank and the building agent submitted unsigned depositions. The reason for this was that the lady who slipped and fell was unable to sign her deposition because the bank and the building agent did not send her a complete copy of the transcript of her deposition. The pictures which were supposed to be part of her deposition were not included in the copy sent to her so that she was unable to see and review them. She was unable to sign them and return them to the bank and the building agent. She was given a copy of the complete transcript only after the bank had filed its motion for summary judgment.
Also, the Court noted that even the deposition of the bank manager which was attached as supporting evidence of the motion for summary judgment was unsigned. To correct the obvious defect in the evidence, the bank and the building agent submitted an affidavit signed by the bank manager and attached it to its reply to the lady’s opposition to the motion to dismiss.
The Court then holds that since the evidence presented by the bank and the building agent were not in admissible form, then the motion for summary judgment must be denied.
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