Opinion
2013-04-2
Frank DeSARIO, Plaintiff–Respondent, v. SL GREEN MANAGEMENT LLC, et al., Defendants–Appellants.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellants. Wingate, Russotti, Shapiro & Halperin, LLP, New York (Nicole M. Gill of counsel), for respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick J. Lawless of counsel), for appellants. Wingate, Russotti, Shapiro & Halperin, LLP, New York (Nicole M. Gill of counsel), for respondent.
MAZZARELLI, J.P., MOSKOWITZ, DEGRASSE, FEINMAN, CLARK, JJ.
Order, Supreme Court, New York County (Louis B. York, J.), entered May 17, 2012, which, in this personal injury action, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Plaintiff was allegedly injured after he attempted to maneuver defendants' lift, which weighed approximately 740 pounds, under a low-hanging pipe, in order to move it up a ramp to a location where he was scheduled to repair a security camera on defendants' property. Given the conflicting deposition testimony as to what was said and to whom, any determination would be based upon the credibility of the parties, which is to be resolved at trial, not on a motion for summary judgment ( see S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974];Carrozzi v. Gotham Meat Corp., 181 A.D.2d 587, 581 N.Y.S.2d 728 [1st Dept. 1992] ). Indeed, a question of fact exists as to whether defendant SL Green Realty's engineer violated a duty to impart correct information, by allegedly telling plaintiff that it was “not a big deal” to tilt the lift, and that the maneuver was done “all the time,” without telling him that at least three people were required to move the machine safely ( see Heard v. City of New York, 82 N.Y.2d 66, 73–74, 603 N.Y.S.2d 414, 623 N.E.2d 541 [1993];Hudson Riv. Club v. Consolidated Edison Co. of N.Y., 275 A.D.2d 218, 220, 712 N.Y.S.2d 104 [1st Dept. 2000] ). Plaintiff's testimony on this point was not inadmissable hearsay, as it was not offered for the truth of the matter asserted. Rather, it was offered only as evidence that the statements were in fact made ( see Giardino v. Beranbaum, 279 A.D.2d 282, 720 N.Y.S.2d 3 [1st Dept. 2001] ).