Oldham v. City of New York — 155 A.D.3d 477

Majority

p. 477

Barbara Oldham et al., Appellants, v City of New York et al., Defendants, and Waterworks A Joint Venture et al., Respondents.

[65 NYS3d 504]

Order, Supreme Court, New York County (James E. d’Auguste, J.), entered on or about March 4, 2016, which granted the motion of defendants-respondents (respondents) for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion denied.

Respondents failed to establish entitlement to judgment as a matter of law in this action for personal injuries sustained when plaintiff Barbara Oldham tripped and fell in a pothole in the road. The affidavit submitted by respondents’ field engineer was insufficient since no facts were set forth by her to indicate that she possessed personal knowledge of the specific road construction work at issue (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373 , 384-385 [2005]; Onewest Bank, FSB v

p. 478

Michel, 143 AD3d 869 [2d Dept 2016]). The engineer also provided insufficient information that would authenticate the business records on which she relied in order to except such records from application of the hearsay rule (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 , 579-580 [1986]; Lodato v Greyhawk N. Am., LLC, 39 AD3d 494 , 495 [2d Dept 2007]).

Concur—Renwick, J.R, Manzanet-Daniels, Andrias, Kern and Oing, JJ.

Cases cited

JMD Holding Corp. v. Congress Financial Corp. 4 NY3d 373 N.Y. 2005-03-31 at 384-385 p. 477
Onewest Bank, FSB ex rel. Indy-Mac Bank, FSB v. Michel 143 AD3d 869 N.Y. App. Div. 2016-10-19 p. 478
People v. Kennedy 68 NY2d 569 N.Y. 1986-12-19 at 579-580 p. 478
Lodato v. Greyhawk North America, LLC 39 AD3d 494 N.Y. App. Div. 2007-04-03 at 495 p. 478