In Choice v. Gill , Kurt Barnes was building basement steps within a fenced and gated yard.
Although the opening was covered by plywood, and marked with cones and yellow caution tape, Beverly Choice still managed to fall down that gap and injure herself.
While she first claimed there were no witnesses to the incident, Choice later submitted an affidavit from her son, Alfred.
When the Kings County Supreme Court denied his request to have the case dismissed, Barnes appealed to the Appellate Division, Second Department, which ended the lawsuit.
The AD2 refused to consider an affidavit submitted by Choice's son due to its sudden eleventh-hour appearance and since it was in contradiction of a prior representation there were no witnesses.
That wasn't a matter of Choice.
To download a copy of the Appellate Division's decision, please use this link: Choice v. Gill