Cellar Door Trip/Fall Case Should Have Been Dismissed; Errata Sheet Could Not Be Used to Correct Location of Accident

InĀ Horn v. 197 5th Ave. Corp., the Appellate Division, Second Department held that plaintiff’s trip-and-fall case should have been dismissed.

Plaintiff sued “to recover damages for injuries she sustained when she allegedly tripped and fell over a sidewalk cellar door adjacent to the defendants’ property at 197 Fifth Avenue in Brooklyn.”

There was, however, a slight problem:

[A]t her deposition, the plaintiff repeatedly testified in great detail that she tripped and fell at 140 Fifth Avenue, a location which was approximately two to three blocks away and on the other side of the street from the defendants’ property. The plaintiff thoroughly described the route she took and the direction and distance she traveled that brought her to the site of her accident, as well as the name and address of the business at 140 Fifth Avenue where she fell. Moreover, she testified that she confirmed the address of the location by visiting the site of her accident a few days later, at which time she wrote down the address, and she circled on a photograph of the cellar door at 140 Fifth Avenue the spot on which she claimed to have tripped.


Plaintiff tried to correct the problem by executing an “errata sheet” in which she explained “that, prior to her deposition, she was shown photographs of 140 Fifth Avenue that mistakenly had been taken by an investigator hired by her attorney, and that she thereafter premised her testimony on her accident having occurred at the location depicted in those photographs.”

The appellate court held that the errata sheet should have been stricken, and that defendants were entitled to summary judgment dismissing plaintiff’s case:

Contrary to the determination of the Supreme Court, the plaintiff failed to provide an adequate reason for the numerous, critical, substantive changes she sought to make in an effort to materially alter her deposition testimony. Accordingly, the court should have granted those branches of the defendants’ motions which were to strike the errata sheet. Additionally, since the only admissible evidence in the case consisted of the plaintiff’s deposition testimony that her accident occurred at 140 Fifth Avenue, and since the defendants established that they had no connection to that location, the defendants demonstrated their prima facie entitlement to judgment as a matter of law. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted those branches of the defendants’ motions which were for summary judgment dismissing the complaint insofar as asserted against each of them.

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