Doumbia v City of New York

Doumbia v City of New York 2010 NY Slip Op 08778 [78 AD3d 587] November 30, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

Mahamadou Doumbia, Respondent,
v
City of New York et al., Defendants, and J.J.C. Construction Corp., Appellant.

—[*1] Michael H. Zhu, New York, for appellant. Joseph Lichtenstein, Mineola, for respondent.

Order, Supreme Court, Bronx County (Paul A. Victor, J.), entered August 31, 2009, which, in an action for personal injuries sustained when plaintiff was struck by a hit-and-run vehicle while walking in a roadway undergoing reconstruction, granted plaintiff's motion to renew a prior order, same court and Justice, entered January 6, 2006, which had granted defendant-appellant construction company's motion for summary judgment dismissing the complaint as against it, and, upon renewal, denied the motion, unanimously affirmed, without costs.

Even if, as defendant argues, plaintiff's newly offered evidence on renewal, consisting mostly of admissions allegedly made by defendant's principal that the temporary pedestrian walkway was closed on the day of the accident, was available at the time of the prior motion in the sense that the admissions could have been elicited at the principal's pre-motion deposition, and therefore not technically new, the circumstances warrant relaxation of that requirement and consideration of the alleged admissions in the interest of justice (see Atiencia v MBBCO II, LLC, 75 AD3d 424, 424-425 [2010]). More particularly, defendant's prior motion for summary judgment should have been denied as plaintiff's testimony, by itself, was sufficient to raise issues of fact not only as to whether there was adequate signage directing pedestrian traffic to the walkway, but indeed whether the walkway was closed, and the newly offered admissions merely provide additional support for finding an issue of fact in the latter regard. Also bearing on the interest of justice is the trial justice's subsequent order that, on constraint of the prior order, dismissed the action as against the other remaining defendants. We have considered defendant's other contentions and find them unavailing. Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Renwick and DeGrasse, JJ.