Wednesday, May 30, 2012

Employee’s hope that evidence may be uncovered during discovery is insufficient to reject the employer’s motion for summary judgment


Employee’s hope that evidence may be uncovered during discovery is insufficient to reject the employer’s motion for summary judgment
Washington v New York City Bd. of Educ., 2012 NY Slip Op 04103, Appellate Division, First Department
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The employee claimed that she had slipped while using an internal staircase in the school building and then fell.

At the administrative hearing held to consider her claim she testified that she "tripped/slipped and fell" on a "substance" and that the staircase was "unclean, dirty and contained a substance for an unreasonable amount of time." She subsequently filed verified bill of particulars that she slipped and fell "on an unknown liquid substance," and that the subject stairwell was "dirty, slippery, [and] wet."

Although discovery was still pending, the New York City Board of Education moved for summary judgment dismissing the  employee's complaint. The Appellate Division said that the Board had established a prima facie entitlement to summary judgment by pointing to the employee’s testimony at the administrative hearing that she did not know what caused her to fall.

Sustaining the granting of the Board’s motion, the Appellate Division explained that the employee had failed to submit evidence sufficient to raise a triable issue of fact. The assertions in her bill of particulars and her affidavit that she slipped on a wet and slippery condition caused by an "unknown liquid" or "semi-liquid" substance contradict her prior hearing testimony that she did not know what caused her to fall.

Because, said the court, the employee’s affidavit and bill of particulars can only be considered to avoid the consequences of her prior testimony, they are insufficient to raise an issue of fact.

While the employee claimed that certain requested “incident reports and maintenance records,” in conjunction with her testimony that she slipped on "something," could prove that a foreign substance was on the stairs where she fell, the Appellate Division ruled that “the mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during discovery is insufficient to deny the motion.”

The decision is posted on the Internet at:

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