OLDHAM v. Waterworks A Joint Venture, et al., Defendants–Respondents. (2017)

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 N.Y.3d 373, 384–385, 795 N.Y.S.2d 502, 828 N.E.2d 604 [2005];  Onewest Bank, FSB v. Michel, 143 A.D.3d 869, 39 N.Y.S.3d 485 [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 N.Y.2d 569, 579–580, 510 N.Y.S.2d 853, 503 N.E.2d 501 [1986];  Lodato v. Greyhawk N. Am., LLC, 39 A.D.3d 494, 495, 834 N.Y.S.2d 239 [2d Dept.2007] ).