Plaintiff Jane Landisi suffered personal injuries on March 23, 1988 when she tripped and fell on a segment of a concrete sidewalk which was significantly raised from the adjacent segment, apparently by the growth of the roots of a nearby tree.
Plaintiffs contend that Supreme Court erred in several instances and that they appropriately established issues of fact sufficient to defeat the Mortons' motion for summary judgment. We agree. In the affidavit of William Komisar, a licensed land surveyor, plaintiffs established that the Mortons owned half of the sidewalk at the site of the accident. When viewed in conjunction with the accompanying survey of the site, as well as photos which identified the accident location, and Jane Landisi's deposition testimony, we find that a question of fact was raised as to the Mortons' ownership of the subject sidewalk. Further support for this conclusion is found in the affidavit of the Highway Superintendent of the City of Beacon disavowing ownership or maintenance of the sidewalk by the City.
Plaintiffs also submitted an affidavit from John Zampino, office manager of a tenant in the Mortons' building, who witnessed repairs to the specific sidewalk location at which
In opposition to a motion for summary judgment, a plaintiff is entitled to every favorable inference which can be reasonably drawn from the evidence (Tambaro v City of New York, 140 A.D.2d 331, 332; see also, Merlis v Lupo, 108 A.D.2d 902). The facts presented here raise a fair inference that the initial defective repairs were made by the Mortons (see, Xenakis v Vorilas, 166 A.D.2d 586; Botfeld v City of New York, 162 A.D.2d 652).
However, plaintiffs did not rest with the foregoing proof showing that the Mortons owned the sidewalk and that repairs were made at their instance. Their private investigator interviewed the contractors (a father and son) who made the original repairs and confirmed that the original repair work was performed by them at the request of the Mortons. The Mortons contend that this proof, set forth in an affidavit by the private investigator, is rank hearsay and patently insufficient to defeat a motion for summary judgment. To be sure, conclusory hearsay from unidentified sources is inadequate to defeat a motion for summary judgment (Poluliah v Fidelity High Income Fund, 102 A.D.2d 720). The situation at bar, however, is significantly different.
Generally, "`[h]earsay evidence is not to be shut out'" from consideration in opposition to a motion for summary judgment (Phillips v Kantor & Co., 31 N.Y.2d 307, 312 [citation omitted]; see also, Wertheimer v New York Prop. Ins. Underwriting Assn., 85 A.D.2d 540). Where a party submits affidavits which identify the witnesses, the substance of their testimony, how it is known what that testimony would be and how the witnesses acquired their knowledge, the hearsay set forth in such affidavits may be sufficient to defeat a motion for summary judgment provided an acceptable excuse for the failure to tender evidence in admissible form is supplied (Egleston v Kalamarides, 58 N.Y.2d 682, 684; see, Zuckerman v City of New York, 49 N.Y.2d 557, 562;
The record shows that the contractors refused to sign affidavits supporting plaintiffs. Obviously, such affidavits would be an admission by them that it was their work which is now alleged to have been negligently performed. In fact, plaintiffs commenced legal action against the contractors at about the time the instant motion was made by the Mortons. We find that this proof provides an acceptable excuse for plaintiffs' failure to have met the strict requirement to tender evidence in admissible form and permits the consideration of hearsay evidence (see, Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1068; Noha v Gurda, Gurda & Tatz, 178 A.D.2d 731). For these reasons, it was error to grant summary judgment to the Mortons.
Ordered that the order is modified, on the law, with costs to plaintiffs, by reversing so much thereof as granted the motion by defendants Thaddeus Morton and Constance Morton for summary judgment; said motion denied; and, as so modified, affirmed.