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VALERIO v. CITY OF NEW YORK

23 A.D.3d 308 (2005)

804 N.Y.S.2d 312

CECILIA VALERIO, Respondent, v. CITY OF NEW YORK et al., Defendants, and TRIUMPH CONSTRUCTION CORP., Appellant. (And a Third-Party Action.)

Appellate Division of the Supreme Court of the State of New York, First Department.

November 29, 2005.

The speculative and contradictory deposition testimony of Triumph's officer/employee was insufficient to establish a prima facie entitlement to judgment as a matter of law. Moreover, whatever showing Triumph made was rebutted by plaintiff with admissible evidence in the form of street opening permits as well as the officer's deposition testimony, raising a triable issue of fact (cf. James v Jamie Towers Hous. Co., 99 N.Y.2d 639 ...

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