Oldham v City of New York

Oldham v City of New York 2017 NY Slip Op 08087 Decided on November 16, 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 November 16, 2017
Renwick, J.P., Manzanet-Daniels, Andrias, Kern, Oing, JJ.
4966 150578/13

[*1]Barbara Oldham, et al., Plaintiffs-Appellants,

v

The City of New York, et al., Defendants, Waterworks A Joint Venture, et al., Defendants-Respondents.

Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury (Beth S. Gereg of counsel), for appellants.

London Fisher LLP, New York (William C. Lamboley of counsel), for respondents.

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 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]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 16, 2017

CLERK