Cecilia Valerio v City of New York

Valerio v City of New York 2005 NY Slip Op 09031 [23 AD3d 308] November 29, 2005 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

Cecilia Valerio, Respondent,
v
City of New York et al., Defendants, and Triumph Construction Corp., Appellant. (And a Third-Party Action.)

—[*1]Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered January 10, 2005, which, to the extent appealed from, denied defendant Triumph Construction's motion for summary judgment with respect to the complaint and cross claims against it, unanimously affirmed, without costs.

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 NY2d 639 [2003], affg 294 AD2d 268 [2002]). Concur—Saxe, J.P., Ellerin, Sweeny and Catterson, JJ.