Donsimoni v Fall

Donsimoni v Fall 2017 NY Slip Op 07092 Decided on October 10, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 10, 2017
Richter, J.P., Gische, Kapnick, Kahn, Kern, JJ.
4624 155621/14

[*1]Jean F. Donsimoni, Plaintiff-Respondent,

v

Serigne M. Fall, Defendant-Appellant.

Bruno, Gerbino & Soriano, LLP, Melville (Nathan M. Shapiro of counsel), for appellant.

Mitchell Dranow, Sea Cliff, for respondent.

Order, Supreme Court, New York County (Leticia M. Ramirez, J.), entered on or about January 19, 2017, which granted plaintiff's motion to reargue its prior order, entered on or about August 3, 2016, granting defendant's motion for summary judgment dismissing the complaint and, upon reargument, denied the motion, unanimously affirmed, without costs.

The fact that plaintiff's lone affidavit of merit in opposition to defendant's summary judgment was acknowledged by a vice-consul in the U.S. Embassy in Paris, France, yet was submitted without a requisite certificate of conformity (see CPLR 2309[c]; Real Property Law § 301, et seq.), constituted an irregularity that could be corrected nunc pro tunc, if necessary (see DaSilva v KS Realty, L.P., 138 AD3d 619 [1st Dept 2016]; Gyamfi v Citywide Mobile Response Corp., 146 AD3d 612 [1st Dept 2017]), and the affidavit otherwise raised both factual and credibility issues as to the cause of the accident, warranting denial of summary judgment (see e.g. Redlich v Stone, 152 AD3d 432 [1st Dept 2017]).

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 10, 2017

CLERK