VALERIO v. [And a Third-Party Action].

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Supreme Court, Appellate Division, First Department, New York.

Cecilia VALERIO, Plaintiff-Respondent, v. The CITY OF NEW YORK, et al., Defendants, Triumph Construction Corp., Defendant-Appellant. [And a Third-Party Action].

Decided: November 29, 2005

SAXE, J.P., ELLERIN, SWEENY, CATTERSON, JJ. Goldman & Grossman, Esqs., New York (Eleanor R. Goldman of counsel), for appellant. Fotopoulos, Rosenblatt & Green, New York (Constantine D. Fotopoulos of counsel), for respondent.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered January 10, 2005, which, to the extent appealed from, denied defendant Triumph Construction's motion for summary judgment with respect to the complaint and cross claims against it, unanimously affirmed, without costs.

The speculative and contradictory deposition testimony of Triumph's officer/employee was insufficient to establish a prima facie entitlement to judgment as a matter of law.   Moreover, whatever showing Triumph made was rebutted by plaintiff with admissible evidence in the form of street opening permits as well as the officer's deposition testimony, raising a triable issue of fact (cf. James v. Jamie Towers Hous. Co., 99 N.Y.2d 639, 760 N.Y.S.2d 718, 790 N.E.2d 1147 [2003], affg. 294 A.D.2d 268, 743 N.Y.S.2d 85 [2002] ).