Courts often cite to party testimony to find a factual dispute which forms the basis to deny a summary judgment motion.  But in two recent cases out of the First Department Appellate Division, the courts found in favor of property-owner defendants, in part, due to the testimony of the plaintiffs.

In Pinkham v West Elm the plaintiff alleged that she was injured when she fell off an elevated display platform in defendants’ store. In support of a motion for summary judgment, defendants submitted photographic evidence showing that the steps of the platform were clearly demarcated with thick black lines which contrasted with the light color of the floorboards. The evidence also showed that the steps were well lit and free of debris. In opposition, the plaintiff submitted an expert’s report finding the area was a defective condition as it violated the New Jersey Handicap Accessibility Code and created optical confusion due to the monochromatic floor covering used on the platform and steps.

The Supreme Court denied the motion for summary judgment; but on appeal the Appellate Division reversed and issued summary judgment in favor of the store. The Court cited the plaintiff’s testimony that she turned and stepped without looking down as she was seeking a sales associate and that the steps played no part in her fall.

Similarly, in Caban v Bronx Park S. II Assoc. the plaintiff allegedly tripped over the loose edge of a rubber mat that was affixed to the interior stairs in the lobby of the defendant’s building. The defendant building owner moved for summary judgment arguing that it did not create the alleged defective condition or have notice of its existence. The defendant showed that its porter cleaned the building daily and regularly inspected the mat and the Supreme Court awarded the defendant summary judgment.

On appeal, the decision was affirmed and the Appellate Division quoted the plaintiff’s own testimony that she was looking down at the mat immediately before the accident and admittedly did not see any defect.  These cases show that the best defense is often to simply establish that the facts are on your side.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.