Katz v. City of New York

Order, Supreme Court, New York County (Carol Huff, J.), entered on or about October 6, 1999, which, in an action for personal injuries sustained in a fall allegedly caused by a sidewalk defect, denied defendant-appellant sidewalk contractor’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The contractor’s president stated at deposition that the relevant contract is in its possession and would show whether it performed work at the location where plaintiff fell, yet, it never produced the contract. The failure to do so gives plaintiff and codefendant City an acceptable excuse for not having tendered evidentiary proof in admissible form countering the affidavit of the contractor’s supervisor that the contractor did not perform work at the site where plaintiff fell (see, Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). Concur—Sullivan, P. J., Nardelli, Williams, Saxe and Friedman, JJ.