Rosado v Phipps Houses Servs., Inc., 2012 NY Slip Op 02385 (1st Dept., 2012)

Plaintiff alleges that she slipped and fell in a puddle located on an exterior landing of premises owned, managed and/or operated by defendants, and that two yellow caution cones had been placed against the wall, to her right and left, as she exited, but not in the area of the liquid condition. The presence of caution cones here created a triable issue of fact as to prior actual notice of the condition, as defendants' witness admitted that they would place such caution cones to alert others to a slippery condition and plaintiff denied that the cones were being used to prop open a door, as had been alleged by defendants' witness (see Felix v Sears, Roebuck & Co., 64 AD3d 499 [2009]; Hilsman v Sarwil Assoc., L.P., 13 AD3d 692 [2004]). Additionally, while the hearsay portions of a witness affidavit submitted in opposition to the motion, which referred to an unidentified person or persons having admitted prior notice of the condition, were inadmissible (see Cassanova v General Cinema Corp. of N.Y., 237 AD2d 155 [1997]; Pascarella v Sears, Roebuck and Co., 280 AD2d 279 [2001]), the witness's first hand account of providing defendants with notice of the condition at least 45 minutes before the accident raised triable issues of fact as to prior actual and constructive notice of the condition.

Rosario v Vasquez, 2012 NY Slip Op 01874 (1st Dept., 2012)

In opposition, defendants failed to provide a nonnegligent explanation for the collision (Avant, 74 AD3d at 534); (cf. Ebanks v Triboro Coach Corp., 304 AD2d 406 [2003]). The uncertified police accident report submitted by defendants constitutes hearsay and, in any event, does not support Guzman-Sosa's account of the accident (see Rivera v GT Acquisition 1 Corp., 72 AD3d 525, 526 [2010]).

Contrary to the motion court's finding, depositions are not needed, since Guzman-Sosa had personal knowledge of the facts (see Avant, 74 AD3d at 534).

Quinche v Gonzalez, 2012 NY Slip Op 03158 (2nd Dept., 2012)

Contrary to the plaintiff's contention, the Supreme Court did not err in admitting into evidence at the subject hearing certain audio recordings. The recordings did not constitute inadmissible hearsay. "Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein" (Gelpi v 37th Ave. Realty Corp., 281 AD2d 392, 392). "However, a statement which is not offered to establish the truth of the facts asserted therein is not hearsay" (id.). Here, the recordings at issue were not offered for the truth of the matter asserted therein. Accordingly, the Supreme Court did not err in admitting the recordings into evidence on this ground. The plaintiff's remaining contentions concerning the admission of these recordings are unpreserved for appellate review.


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