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Ever Changing Description of Fall Credibility Issue for Jury (NY)

November 25, 2013

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<span style="font-size: small;">In testimony, parties attempt to capture history.  What happens in but a fraction of a second can be a central and determinative issue in a lawsuit.  Did a fall occur due to ice or was there a broken step?  Such detail could mean the difference between a successful defense or case of liability.  When a video camera captures the action, there may be more definitive proof.  Otherwise, the jury is left to parse it out based upon credibility issues.</span>
<span style="font-family: Calibri; font-size: medium;">In <i><a href="">Muhammad v. New York City Housing Authority</a></i>, the plaintiff's version of his fall changed over time.  In his initially filed notice of claim, he alleged that his accident was caused by either snow/ice accumulation or a broken step.  At his 50h Hearing, the plaintiff testified that he slipped on snow/ice and failed to mention the possibility of a broken step.  Finally, at his deposition, the plaintiff testified that the accident was caused solely by a broken step.  </span>
<span style="font-family: Calibri; font-size: medium;">Based upon the ever changing description of the fall, the Housing Authority moved for summary judgment, arguing that the plaintiff’s deposition testimony was a feigned attempt to create an issue of fact.  The lower court granted the motion, finding that the defendant was not negligent for the snow/ice condition which the plaintiff had originally identified as the cause of his accident.  </span>
<span style="font-family: Calibri; font-size: medium;"> </span><span style="font-family: Calibri; font-size: medium;">The First Department partially reversed the lower court’s decision, finding that the lower court should not have disregarded the plaintiff’s prior allegation in his notice of claim that the broken step caused his accident.  Should a jury find that plaintiff fell on a broken step, the Housing Authority could be liable.  On the other hand, the appellate court upheld summary judgment on the issue of potential liability for a snow/ice condition.  In remanding the matter for trial, the appellate court held that the inconsistencies between the plaintiff’s 50h testimony and his deposition testimony raise issues of credibility that should be left for a trier of fact.   </span>
<span style="font-family: Calibri; font-size: medium;"> Special thanks to Georgia Stagias for her contribution.</span>
For more information, contact Denise Fontana Ricci at <a href=""></a>.

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