A procedural gem – affidavit as probative evidenceOctober 25, 2018
Hernandez v Ortiz, 2018 NY Slip Op 07075 (1st Dept. 2018)
In much of the hyper-technical world of no-fault, the question becomes the quality of the evidence to prove a particular fact or proposition of law. The Court held that an affidavit relying on other not-produced evidence is sufficient to meet a prima facie burden.
“In this trip and fall case involving an uneven sidewalk, defendant Ortiz’s testimony that she lived in a one-family home adjacent to the sidewalk was sufficient competent evidence to make a prima facie showing that she qualified for the exemption provided at Administrative Code of City of NY § 7-210(b) (see Coogan v City of New York, 73 AD3d 613 [1st Dept 2010]; Miller v City of New York, 253 AD2d 394, 395 [1st Dept 1998] [“that an affidavit is submitted by a party or other interested person does not detract from its sufficiency as competent evidence”]).”