Elmer v. Kratzer ( 1998 )

Hayes and Fallon, JJ.

(dissenting). In our view, Supreme Court properly denied the motion of defendant City of Niagara Falls (City) for summary judgment, and we therefore respectfully dissent. The motion was premature because there were outstanding discovery matters (see, Groves v Land’s End Hous. Co., 80 NY2d 978, 980; Parkoff v General Tel. & Elecs. Corp., 53 NY2d 412, 417, rearg denied 54 NY2d 832; see also, CPLR 3212 [f]). In fact, the only deposition that had been taken was that of plaintiff.

Additionally, we conclude that the City failed to sustain its burden in the first instance. The City predicated its motion on the affidavit of its Traffic Planner in the City’s Public Works/ Traffic Engineering Department. That affidavit, however, is devoid of any reference to the qualifications, skill, training, knowledge or experience of the affiant. Thus, there is no way to assure that the opinion provided is reliable (see, Daum v Auburn Mem. Hosp., 198 AD2d 899; see also, LaMarque v North Shore Univ. Hosp., 227 AD2d 594). In opposition to the City’s motion, plaintiff submitted an affidavit of an expert whose credentials were provided and who reached a different conclusion on the evolution of the highway on which plaintiffs injuries were sustained. We conclude that there were genuine issues of material fact that precluded summary judgment (see, Temple v Chenango County, 228 AD2d 938, 939; Appelbaum v County of Sullivan, 222 AD2d 987, 989-990). (Appeal from Order of Supreme Court, Niagara County, Fahey, J. — Summary Judgment.) Present — Denman, P. J., Hayes, Balio, Boehm and Fallon, JJ.