New York Supreme and/or Appellate Courts Appellate Division, First Department
February 28, 2013
JANET H. ACCARDO, PLAINTIFF-RESPONDENT,
METRO-NORTH RAILROAD, DEFENDANT-APPELLANT.
Accardo v Metro-N. R.R.
Decided on February 28, 2013
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Sweeny, Renwick, Abdus-Salaam, Manzanet-Daniels, JJ.
Order, Supreme Court, New York County (Richard F. Braun, J.), entered on or about May 17, 2012, which denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Summary judgment was properly denied in this action where plaintiff was injured when, while stepping off defendant's train, she slipped and fell on an icy condition on the platform. The expert's report, submitted in support of defendant's motion, was unsworn, and thus, not in admissible form. This was an error that could not be cured by submitting a sworn affidavit by this expert in reply papers (see Damas v Valdes, 84 AD3d 87, 95-96 [2d Dept 2011]; see also Batista v Santiago, 25 AD3d 326 [1st Dept 2006]). Moreover, the record presents triable issues as to whether, since the cessation of the storm, defendant had a reasonable amount of time to remedy the icy-wet conditions at the station where plaintiff fell (see Powell v MLG Hillside Assoc., 290 AD2d 345 [1st Dept 2002]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 28, 2013
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