Using Hearsay Statements in a Slip and Fall Action

Establishing notice in a slip and fall action often requires a multiplicity of evidence: often a bit of testimonial, photographic, documentary and, on occasion testimony by an expert witness, whether by affirmation or testimony at trial .  In opposing a defendant’s summary judgment motion in a slip and fall action, all of these types of evidence can come into play, plus one other unavailable to the moving party:  hearsay evidence.  Having been taught that hearsay is inadmissible, unless falling into a recognized exception, we are conditioned that all other hearsay is inadmissible. The First Department in Medina v. 217 LLC, 2026 NY Slip Op 00449 (1^st Dep’t 2026),[i] a decision highlighting the various admissible evidence in a slip and fall case, affirmed the denial of defendants’ summary judgment motion in a slip and fall action.  Plaintiff slipped and fell in defendants’ building, and alleged the fall was caused by water leaking through a skylight and accumulating on top of stairs.  Defendant argued summary judgment was warranted, as it had no actual or constructive notice of a watery condition.  However, the First Department agreed with the trial court’s determination that there were triable issues of fact in dispute, relying, in part, on hearsay evidence submitted by plaintiff in opposition to the motion. In support of the motion, the defendant proffered the building’s handyman’s testimony that he inspected the premises every morning, including the morning of plaintiff’s fall, and never saw or received complaints about water leaking from the skylight, thereby establishing prima facie entitlement to summary judgment. In opposition to the motion, plaintiff testified:

[T]hat it had rained the previous day, as well as the morning of the incident, that her employer, a resident of defendant’s building, told her that water had been collecting on that landing when it rained “for many years,” and that plaintiff passed along her employer’s complaints to the building’s superintendent prior to her accident. She further testified that, after she fell, she herself saw the water leaking from a light fixture and into the hallway, and her employer’s nephew indicated that he too had previously complained about the water leakage.[ii]

In considering the testimony, the Court recognized that the statements attributed to plaintiff’s employer and her employer’s nephew were hearsay.  However, the Court affirmed admission of the hearsay evidence holding

Although the statements made by plaintiff’s employer and the employer’s nephew are hearsay, the record indicates that the declarants were not available, and the testimony was properly considered in opposition to defendant’s summary judgment motion along with other nonhearsay evidence.

In permitting the hearsay statements of these witnesses, the Court further noted:

Moreover, the statements were offered not for the truth of the matter asserted but to show that defendant received information about the leak and was therefore on notice.

The Court found these hearsay statements admissible as evidence in opposition to defendant’s summary judgment motion and, coupled with plaintiff’s testimony , raised issues of fact as to notice that precluded granting summary judgment. The case cited by the Court for the admission of otherwise inadmissible hearsay in opposition to summary judgment, Matter of New York City Asbestos Litig., 190 AD3d 589 (1^st Dep’t 2021), nicely summarized the rule:

It does not avail Port Authority to argue that some of the coworker’s testimony was inadmissible hearsay. Plaintiff, as the party opposing summary judgment, “may be permitted to demonstrate acceptable excuse for [a] failure to meet the strict requirement of tender in admissible form” (citation omitted). In this case, decedent died without being deposed, and the allegations center on occurrences in the 1970s. Moreover, any evidence that would be inadmissible at trial is not the sole basis for the finding that there are issues of fact (citation omitted).

Medina v. 217 LLC, 2026 NY Slip Op 00449 (1^st Dep’t 2026) Decision Date: January 22, 2026

Practical Practice Point:

For those practitioners seeking to raise issues of fact, the above case affirms the proposition that otherwise inadmissible hearsay may be utilized in opposition to a defendant’s summary judgment motion and may be properly considered by the Court.  This is particularly so where the declarant is unavailable, and the statements are accompanied by “other nonhearsay evidence,”  in other words other competent, admissible evidence.  It is also important to identify the alleged hearsay statement, and determine whether there is a viable argument that the statements are not hearsay because they are not presented for their truth, as in Medina where the truth of the plaintiff’s employer and plaintiff’s employer’s nephew’s statement was not at issue, but the relevance is that these statements were relayed to the plaintiff, who then relayed them to defendant, to establish notice.  Therefore, in proving one’s case, despite our reflex to the contrary, don’t disregard evidence that, on its face appears to be inadmissible, as it may be admitted for a nonhearsay purpose to establish issues of fact.  One caveat:  the relative quantum of admissible versus inadmissible evidence which may be considered by a court when submitted in opposition to summary judgment is not susceptible to a bright line test, and tipping the balance as far as possible towards admissible evidence is always best practice. [i] LEXIS has the wrong cite, 2026 NY Slip Op 00316. [ii] The Court also noted: “Plaintiff’s failure to notice the wet condition of the floor prior to her fall does “not conclusively establish [defendant’s] lack of notice” (citation omitted).