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Lorraine Morabito v 11 Park Place LLC: A sophisticated motion defeated by a simple issue of fact

June 18, 2013 • Posted By Omar Chaudhry • Trial Practice

Did the defendant have enough time to lay down the mats in its building lobby during rainy weather?  In a slip and fall action wherein the plaintiff alleged that she slipped and fell on a wet floor in the lobby of defendant’s building, the plaintiff defeated defendant’s motion for summary judgment, because she was able to establish a material issue of fact as to how much time the defendant had to lay down the mats it usually lays down during rainy weather.   

Defendant argued that its diligent employee did not have enough time to lay down the mats in the lobby.  Defendant’s motion for summary judgment was supported by the deposition testimony of that employee stating that it started to rain moments before plaintiff fell.  In fact, defendant’s motion was even supported by the testimony of the plaintiff, herself, who said that it started to rain five to ten minutes before she arrived at the building and that she did not see any water on the floor before she slipped.  And…surprise…surprise, the plaintiff in its opposition papers, produced an affidavit from a nonparty witness stating that when she, the witness, arrived at the building approximately 30 minutes before the plaintiff’s accident, it was raining and the lobby floor was uncovered and slippery.   Alas, a simple issue of fact, which arose when three people differed as to when it started raining, defeated the defendant’s motion for summary judgment. 

How much time was there for the defendant’s employee to act?  Was it just a few seconds, five minutes, or thirty or more minutes?  The court ruled that in light of this conflicting evidence, there is an issue of fact as to the reasonableness of the steps taken by the defendant to address the alleged slippery conditions prior to plaintiff’s accident.  The defendant appealed the trial court’s decision and the Supreme Court Appellate Division, First Department, unanimously affirmed, without costs. The appellate court noted that the defendant’s additional submission of an unaffirmed report from a weather company could not be considered, because it was not accompanied by any certified weather records or admissible reports.  A lesson does emerge.   Although a court might consider the summary judgment motion even if a document is in inadmissible form, the evidence you offer on summary judgment must be in admissible form, meaning that the evidence, if introduced at trial, would be admissible at trial.  See Zuckerman v. City of New York, 49 N.Y.2d. 557, 562, 427 N.Y.S.2d 595, 597, 404 N.E.2d 718, 720 (1980).