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David Paul Horowitz and Lukas M. Horowitz David Paul Horowitz and Lukas M. Horowitz

Part One of this column ended with an overview of the recent First Department 3-2 decision reversing the trial court’s denial of summary judgment in Carthen v. Sherman. In Carthen, the majority held: “This Court is not ‘required to shut its eyes to the patent falsity of a [claim]’ … we conclude that plaintiff’s deposition testimony was demonstrably false and should be rejected as incredible as a matter of law,” while the dissenters wrote “[t]he majority’s assertion that plaintiff’s testimony was ‘internally contradictory’ entails a credibility determination we are not empowered to make … [t]he contradictions in the testimony of the respective parties raise issues of credibility for the trier of fact to resolve.”

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