Henry T. Lau, Appellant,v.Margaret E. Pescatore Parking, Inc. et al., Respondents.

Brief

N.Y.November 16, 2017

To Be Argued By: Kenneth J. Gorman, Esq. Time Requested: 15 Minutes NEW YORK SUPREME COURT APPELLATE DIVISION- FIRST DEPARTMENT HENRY T.LAU, Plaintiff-Appellant, -against- MARGARET E. PESCATORE PARKING, INC, And TAI MING DEVELOPMENT CORP., Defendants-Respondents REPLY BRIEF FOR PLAINTIFF-APPELLANT Kenneth J. Gorman, Esq. PC Appellate Counsel to Law Offices of Wade T. Morris, Esq. 225 Broadway, Suite 307 New York, NY 10007 (212) 267-0033 kennethjgorman@gmail.com New York County Clerk’s Index # 103807/10 Printed on Recycled Paper TABLE OF CONTENTS iiTABLE OF AUTHORITIES PRELIMINARY STATEMENT 1 DISCUSSION 2 CONCLUSION 20 PRINTING SPECIFICATIONS 21 i TABLE OF AUTHORITIES Cases Andersen v. Betz, 150 AD2d 743,744 [2d Dept. 1989] Appel v. Muller, 262 NY 278 [1933] . Ayotte v. Gervasio, 81 NY2d 1056 [1993] Bettineschl v. Healy Elec. Contracting, Inc., 73 AD3d 1109, 1110 [2d Dept. 2010] . . ... Betzag v. Gulf Oil Corp., 298 NY 358,364-5 [1949] Boyce Motor Lines v. United States, 342 U.S. 337, 344 [1952] ... 18 Bruno v. Home Mut. Ins. Co. of Binghamton, 91 AD2d 1169 [4th Dept. 1983] . . Buckley v. Rockefeller Group Inc., 143 AD2d 623,624 [2d Dept. 1988] Canosa v. Abadir, 165 AD2d 823 [2d Dept. 1990] Centeno v. City of NY, 204 AD2d 508 [2d Dept. 1994] Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1218 n.2 [10th Cir. 2007]...... .... Clarke v. NYC, 295 NY 861 [1946] Colt v. Great Atlantic & Pacific Tea Co., 209 AD2d 294,295-6 [1st Dept. 1994]... ... . Cornbrooks v. Terminal Barber Shops Inc., 282 NY 217 [1940] .... 10 Corprew v. City of New York, 106 AD3d 524 [1st Dept. 2013] Cruz v. LIRR Co., 226 NY2d 927 [1970] Delprete v. Victory Mem. Hospital, 191 AD2d 673 [2d Dept. 1993] 14 Dillon v. Rockaway Beach Hospital, 284 NY 176,179 [1940] DiVetri v. ABM Janitorial Serv., Inc., 119 AD3d 486, 487 [1st Dept. 2014] . Donohue v. Elite Assoc. Inc., 159 AD2d 605 [2d Dept. 1990] ... Doughtery v. State of NY, 113 AD2d 983 [3d Dept. 1985] Edwards v. Manhattan & Bronx Surface Transit Operating Auth., 252 AD2d 410, 413 [1st Dept. 1998] .. Farrell v. Labarbera, 181 AD2d 715 [2d Dept. 1992]... Finegold v. BUG, 202 AD2d 469 [2d Dept. 1994] Fochtman v. Gilman, 9 AD2d 904 [2d Dep't 1959].... Ford v. Mizio, 274 AD2d 329 [1st Dept. 2000] Greenberg v. NYCTA, 736 NYS2d 73 [2d Dept. 2002] Gutierrez v. New York City Transit Auth., 59 AD3d 260 [1st Dept. 2009] ..... Haney v. First Nat. Stores, Inc., 31 AD2d 547 [2d Dept. 1968] .. 4 Hausser v. Giunta, 88 NY2d 449 [1996] .. Hepburn v. Croce, 295 AD2d 475, 477 [2d Dept. 2002] . Hull v. Littauer, 162 NY 569, 572 [1900] . Infante v. City of New York, 258 AD2d 333 [1st Dept. 1999] , Ingersoll v. Liberty Bank of Buffalo, 278 NY 1,7 [1932] .... Joffe v, Google, Inc., No. 11-17483, 2013 WL 6905957, at *1 ([9th Cir. Dec. 27, 2013], aff'g In re Google Inc. St. 14 4 16 19 10 5, 8 15 14 13 18 9 16 3 9 10 17 9 8 7 8 13 19 11 10 3 5 3 9 5 10 ii View Elec. Coramc'n Litig., 794 F. Supp. 2d 1067 [N.D. Cal. 2011] .. Kaminer v. Dan's Supreme Supermarket/Key Food, 253 AD2d 657 [1st Dept. 1998]...... Kimpland v. Camillus Mall Associates, L.P., 37 AD3d 1128, 1128-29 [4th Dept. 2007].............. ... Klein v. LIRR Co., 303 NY 807 [1962] . Lavine v. Town of Lake Luzerne, 296 AD2d 793, 794 [3d Dept. 2002] Martinez v. Kaufman-Kane Realty Co., Inc., 74 Misc. 2d 341 [Sup Ct. 1973], judgment aff'd, 43 AD2d 554 [1st Dept. 1973], order aff'd, 34 NY2d 819 [1974] McDaniel v. Bonizzi, 143 AD2d 980 [2d Dept. 1988] Montalvo v. Western Estates, Ltd., 240 AD2d 45 [1st Dept. 1998]. 6 Noia v. Maselli, 45 AD3d 746 [2d Dept. 2007] Parello v. Clover Leaf Towers Corp., 38 AD2d 731 [2d Dept. 1972] 9 Parsolano v. County of Nassau, 93 AD2d 815 [2d Dept. 1983] People v. Geraci, 85 NY2d 359, 369 [1995] . Perez v. New York City Hous. Auth., 114 AD3d 586 [1st Dept. 2014] Picone v. City of New York, 247 AD2d 205 [1st Dept. 1998] Quackenbush v. City of Buffalo, 43 AD3d 1386, 1389 [4th Dept. 2007] Raia Industries Inc, v. Young, 124 AD2d 722 [2d Dept. 1986] .... 16 Rindfleisch v. Gentiva Health Sys., Inc., 752 F., Supp. 2d 246, 259 n.13 [E.D.N.Y. 2010] .. Rohlfs v. Weil, 271 NY 444 [1936] . Rosenberg v. Schwartz, 260 NY 162,166 [1932] ..... Royal v. BUG, 122 AD2d 132,133 [2d Dept. 1986] .. Rufino v. Colella, 215 AD2d 223 [1st Dept. 1995] Santorio v. Diaz, 86 AD2d 926 [3d Dept. 1982] ... Scantlebury v. Lehman, 305 NY 703 [1953] Schneider v. Kings Hwy. Hospital Center, 67 NY2d 743-4 [1986] .. 10 Schwartz v. C & B Dairy Products, 96 AD2d 1092 [2d Dept. 1983] . 5 Sherman v. Bruno, 257 AD 1002, [2d Dept. 1939] ... Siciliano v. Henry Modell & Co., 85 AD3d 534, 536 [1st Dept. 2011] Stein v. Palisi, 308 NY 293 [1955] Thomas v. Triangle Realty Co., 255 AD2d 153 [1st Dept. 1998].... 5 Toscano v. Gambella, 171 AD2d 860-1 [2d Dept. 1991] . United States v. Brown, 636 F. Supp. 2d 1116, 1124 n.l [D. Nev. 2009] . United States v. Perea-Rey, 680 F.3d 1179, 1182 n.l [9th Cir. 2012] Utica Sheet Metal Corp. v. J. E. Schechter Corp., 25 AD2d 928 [3d Dept. 1966] '. Vitti v. Maloney, 109 AD2d 836 [2d Dept. 1985] 18 5 4 9 5 5 14 6 9 9 3 6 2 18 5 10 15 9 8 9 5 4 9 12 18 18 8 9 iii Vulpis v. Arch Diner, 295 AD2d 340 [2d Dept. 2002] Woodson v. NYCHA, 10 NY2d 30, 32 [1961] Zolezzi v. Bruce-Brown, 243 NY 490 [1926] . Statutes Fed. R. Evid. 201(b) Other Authorities David J. Dansky, The Google Knows Many Things: Judicial Notice in the Internet Era, 39 Colo. Law. 19,- 24 [2010] . Siegel, Practice Commentaries, Book 7; McKinney's Consolidated Laws of NY, CPLR 3212:19, pp. 438-9 Treatises 65 N.Y. Jur. 2d Highways, Streets, and Bridges § 389 . 85 N.Y. Jur. 2d Premises Liability § 11 . 85 N.Y. Jur. 2d Premises Liability § 80 . 12 9 5 17 18 8 19 4 5 iv 1 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION FIRST DEPARTMENT —X NY #103807/10HENRY T. LAU, Plaintiff-Appellant, REPLY BRIEF -against- MARGARET E. PESCATORE PARKING, INC, And TAI MING DEVELOPMENT CORP., Defendants-Respondents. ■X PRELIMINARY STATEMENT The plaintiff-appellant Henry T. Lau (hereinafter the "plaintiff) submits this brief in reply to the briefs submitted by defendant-respondent Margaret E. Pescatore Parking, Inc. (hereinafter "Pescatore") and defendant-respondent Tai Ming Development Corp.'s (hereinafter "Tai Ming") in connection with the appeal he took from an order of the Supreme Court, New York County (Silver, J.), dated December 23, 2005 (10-14)1, which granted Pescatore's motion for summary judgment, dismissing the complaint and all cross claims insofar as asserted against it and granted Tai Ming's cross motion for summary judgment, dismissing the complaint and all cross claims insofar as asserted against it. It is respectfully submitted that the order should be reversed and the plaintiff's complaint reinstated. Page numbers in parenthesis refer to the record on appeal.1 1 DISCUSSION Assuming familiarity with the papers before this Court, and having reviewed the defendants' briefs, we respond directly to the arguments therein. (A) First, Pescatore failed to adequately address plaintiff's contention that it did not meet its -burden for summary judgment. The proof established that Pescatore owned and controlled the subject barrel. Moreover, the record conclusively establishes that it routinely placed barrels in the exact same spot where the barrel was in on the night in question during the year preceding the incident. Anthony Maruffi, the Pescatore's witness had no personal knowledge of the plaintiff's accident and could not recall whether he was working on the day of the incident. "[A]s the proponent of the motion for summary judgment, [Pescatore] was required to establish as a matter of law that it did not create the dangerous condition and did not have actual or constructive notice of it" (Quackenbush v. City of Buffalo, 43 AD3d 1386, 1389 [4th Dept. 2007]). "[I]n order to be entitled to summary judgment dismissing the complaint, [Pescatore] was required to establish prima facie that it did not cause or create the [condition] that allegedly caused plaintiff's fall" (Corprew v. City of New York, 106 AD3d 524 [1st 2 Dept. 2013]). Pescatore failed to produce any witness with first¬ hand knowledge as to what it did with the barrel before plaintiff's accident. As Anthony Maruffi had no knowledge of the events surrounding the day in question and could not testify as to what Pescatore did with the barrel before the incident, we respectfully submit that it failed to meet its burden for summary judgment (see, Gutierrez Auth., 59 AD3d 260 [1stv. New York City Transit Dept. 2009]["Defendant failed to meet the burden of showing not only that it did not create the defective condition, but also that it had no constructive notice of the defective condition because it was not "visible and apparent" and did not exist for a "sufficient length of time prior to the accident" to permit defendant to remedy the defect"]; Perez v. New York City Hous. Auth., 114 AD3d 586 [1st Dept. 2014]["Defendant failed to meet its prima facie burden of demonstrating that it did not create the alleged condition"]; Hepburn v. Croce, 295 AD2d 475, 477 [2d Dept. 2002]["The Town did not submit admissible evidence to establish that it did not create the allegedly dangerous condition on the road, and it therefore failed to sustain its burden on the motion in the first instance"]). "Although plaintiff has such a burden at trial, on this motion for summary judgment, [Pescatore] has the burden of establishing its entitlement to judgment as a matter of law" (Kimpland v. 3 Camillus Mall Associates, L.P., 37 AD3d 1128, 1128-29 [4th Dept. 2007]). We respectfully submit the deposition testimony of Anthony Maruffi, who could not recall whether he was working at the parking lot on March 10, 2010 and had no knowledge as to what was done with the subject barrel was insufficient to establish that Pescatore did not create or have actual or constructive notice of the condition which caused plaintiff to trip and fall. "Assuming, arguendo, that [Pescatore] met its burden, plaintiff's evidence was sufficient to raise a triable issue of fact" (Siciliano v. Henry Modell & Co., 85 AD3d 534, 536 [1st Dept. 2011]). (B) It is the duty of the possessor of property "abutting upon a public way to maintain the premises in such a condition that it does not become dangerous to the traveling public. This duty is not limited to the actual structure of the building and its usual appurtenances; rather, it applies, as well, to temporary attachments and projections that are dangerous to travelers. A breach of such duty may result in liability in negligence imposed upon the [possessor] for injuries sustained by pedestrians" (85 N.Y. Jur. 2d Premises Liability § 77, citing, Appel v. Muller, 262 NY 278 [1933]; Haney v. First Nat. Stores, Inc., 31 AD2d 547 [2d Dept. 1968]; Martinez v. Kaufman-Kane Realty Co., Inc., 74 Misc. 2d 341 [Sup Ct. 1973], judgment aff'd, 43 AD2d 554 [1st Dept. 1973], 4 order aff'd, 34 NY2d 819 [1974]; Rohlfs v. Weil, 271 NY 444 [1936]; Zolezzi v. Bruce-Brown, 243 NY 490 [1926]; Sherman v. Bruno, 257 [2d Dept. 1939]; Schwartz v. C & B Dairy Products, 96AD 1002, AD2d 1092 [2d Dept. 1983]). Pescatore's contention that the accident occurred on neighboring property is without merit. First, it failed to submit any evidence demarcating the property lines and in any event, "[t]he opinions in plaintiffs' attorney's affidavit, not based on personal knowledge, have no probative value as he is not an expert in land surveying" (Lavine v. Town of Lake Luzerne, 296 AD2d 793, 794 [3d Dept. 2002]). Second, as there are questions of fact as to whether Pescatore owned the subject barrel and frequently used the portion of the sidewalk and street in connection with its parking lot, the issue of whether the accident occurred in front of the neighboring property is irrelevant. Although an "owner or occupant of land abutting on a public sidewalk does not, solely by reason of being an abutter, owe to the public a duty to keep the sidewalk in a safe condition but may owe such a duty where the sidewalk is used for a special purpose..." (85 N.Y. Jur. 2d Premises Liability § 80, citing, Hausser v. Giunta, 88 NY2d 449 [1996]; Infante v. City ■ of New York, 258 AD2d 333 [1st Dept. 1999]; Thomas v. Triangle Realty Co., 255 AD2d 153 [1st Dept. 1998]; Kaminer v. Dan's Supreme Supermarket/Key Food, 253 AD2d 657 [1st Dept. 1998]; Picone v. City 5 of New York, 247 AD2d 205 [1st Dept. 1998]; Montalvo v. Western "The principle ofEstates/ Ltd., 240 AD2d 45 [1st Dept. 1998]). special use imposes an obligation on the abutting landowner, where he or she puts part of a public way to a special use for his or her own benefit and the part used is subject to his or her control, to maintain the part so used in a reasonably safe condition to avoid injury to others" (Id., citing, Noia v. Maselli, 45 AD3d 746 [2d Dept. 2007]). Pescatore's contention that this Court should disregard John From the inceptionMaruffi's videotaped statement rings hollow. of this litigation, Pescatore has adamantly denied that it owned the barrel involved in plaintiff's accident. The purpose of John Maruffi's videotaped statement was to establish that Pescatore did own the barrel involved in plaintiff's accident. The trial court stated that plaintiff raised a question of fact as to whether Pescatore owned the barrel involved in his accident (13). The thrust of Pescatore's defense is premised on the erroneous assumption that it did not own the barrel. Pescatore failed to tailor its arguments according to the trial court's finding and the majority of its arguments should not be considered. The only issue is whether the plaintiff established, through circumstantial evidence, that Pescatore created the condition which caused his We respectfully submit that he did and Pescatore'saccident. contention to the contrary is unavailing. 6 John Maruffi was the manager of the parking lot on March 10, 2010, and he was in the best position to give testimony with regard to the placement of the barrel and the reason for tying it to the street sign. It is unfortunate that Mr. Maruffi's health declined and that he passed away in August 2012. However, this is not grounds for disregarding his statement. The plaintiff put Pescatore on formal notice of his accident on March 16, 2010 (354), six days after the incident and he commenced this action on March 24, 2010, two weeks after he fell (26). It must be emphasized that plaintiff exchanged John Maruffi's videotaped statement during the course of discovery (192). Yet, at no point prior to' Anthony Maruffi's deposition, which took place on May 21, 2012 (178), more than two years after this action was commenced, did Pescatore inform plaintiff about Mr. Maruffi's declining heath. Had 'it done so, plaintiff would have expedited his deposition, or at the very least arranged for him to give a statement with regard to who placed the barrel in the street and tied it to the street sign. "It is well settled that where one party to an action, knowing the truth of a matter in controversy and having the- evidence in his possession, omits to speak, every inference against him warranted by the evidence may be considered" (Edwards v. Manhattan & Bronx Surface Transit Operating Auth., 252 AD2d 410, 413 [1st Dept. 1998], quoting, Farrell v. Labarbera, 181 AD2d 715 [2d Dept. 7 1992]). Pescatore has exclusive knowledge of the facts, and therefore it would be unfair to require plaintiff to prove a negative as to the issue of whether Pescatore created the hazard which caused his accident (see generally, Utica Sheet Metal Corp. v. J. E. Schechter Corp., 25 AD2d 928 [3d Dept. 1966]; Doughtery v. State of NY, 113 AD2d 983 [3d Dept. 1985]; Santorio v. Diaz, 86 AD2d 926 [3d Dept. 1982]; Bruno v. Home Mut. Ins. Co. of Binghamton, 91 AD2d 1169 [4th Dept. 1983]; Siegel, Practice Commentaries, Book 7;. McKinney's Consolidated Laws of NY, CPLR 3212:19, pp. 438-9. In Doughtery, the court affirmed a denial of summary judgment against the State where facts, though uncontroverted, were solely within the claimant's knowledge. In Bruno, where plaintiffs-insureds sought to recover proceeds for a burglary under a homeowner's policy, the court affirmed a denial of summary judgment to them because "[w]hat was taken in the burglary and the value thereof, are known only to plaintiffs." Professor Siegel, in his Practice Commentaries, makes clear that where the opposing party has no personal knowledge of the facts which are in the possession of the moving party only, summary judgment is inappropriate, for: When the movant holds the sole key to a material fact, it is too easy for him to state the fact as he wishes in his moving affidavit. He should be made to testify to it in open court and then to submit to one of the most capable of truth-discerning devices, the cross-examination. 8 See also, Donohue v. Elite Assoc. Inc., 159 AD2d 605 [2d Dept. 1990]; Vitti v. Maloney, 109 AD2d 836 [2d Dept. 1985]; Parsolano v. County of Nassau, 93 AD2d 815 [2d Dept. 1983]; Parello v. Clover Leaf Towers Corp., 38 AD2d 731 [2d Dept. 1972]. We do not contest the rule that uncontested evidence should not be rejected where it is "fully corroborated...does not give rise to conflicting inferences, is not contradicted by direct evidence, is not opposed to the probabilities, nor in its nature surprising or suspicious" (Woodson v. NYCHA, 10 NY2d 30, 32 [1961]; see generally, Hull v. Littauer, 162 NY 569, 572 [1900]). But that is not the situation on this record and there is a question of fact as to whether it created the condition that caused the accident (see, Rufino v. Colella, 215 AD2d 223 [1st Dept. 1995]). While plaintiff's evidence is circumstantial in nature, "Circumstantial evidence is not a disfavored form of proof and, in fact, may be stronger than direct evidence when it depends upon undisputed evidentiary facts about which human observers are less likely to err...or to distort" (People v. Geraci, 85 NY2d 359, 369 In New York, liability in a personal injury case may be[1995]). established based solely on circumstantial evidence (See, Clarke v. NYC, 295 NY 861 [1946]; Klein v. LIRR Co., 303 NY 807 [1962]; Scantlebury v. Lehman, 305 NY 703 [1953]; Stein v. Palisi, 308 NY 293 [1955]; Cruz v. LIRR Co., 226 NY2d 927 [1970]. "The law does 9 not require that plaintiff's proof positively exclude every other possible cause but defendant's negligence" Schneider v. Kings Hwy. Hospital Center, 67 NY2d 743-4 [1986]; Ingersoll v. Liberty Bank of Buffalo, 278 NY 1,7 [1932]; Rosenberg v. Schwartz, 260 NY 162,166 [1932]; see generally, Cornbrooks v. Terminal Barber Shops Inc., 282 NY 217 [1940]; Dillon v. Rockaway Beach Hospital, 284 NY 176,179 [1940]; Betzag v. Gulf Oil Corp., 298 NY 358,364-5 [1949]). In Greenberg v. NYCTA, 736 NYS2d 73 [2d Dept. 2002], the trial court granted judgment dismissing plaintiff's case at the close of The plaintiff was an engineerthe proof pursuant to CPLR §4401. who had worked for the Transit Authority for years, and had been On the day in question, he fell on ataking the A train to work. soapy substance on the floor of a car of an A train. There was no definitive proof as to who placed the substance but there was also no evidence of a broken bottle orthere, container, and plaintiff was prepared to testify that he personally knew that A trains would be cleaned at the Lefferts Boulevard The Transit Authority denied that any cleaning was donestation. on the day of the accident. Plaintiff's counsel argued, and the Court agreed, that it was unlikely that some altruistic individual had decided to scrub the floor of that particular car, and therefore it was inferable that the soapy substance was the residue of negligent cleaning procedures employed by the Transit Authority. 10 The Court found that the plaintiff's testimony "should have been admitted as circumstantial evidence that thÿ defendant engaged in that routine on the morning in question and thereby created the hazardous condition..." In Ford v. Mizio, 274 AD2d 329 [1st Dept. 2000], plaintiff in a slip and fall case was dismissed when she failed to sue the owner of a fruit stand on the theory that he caused the ice condition by throwing water onto the sidewalk; she subsequently sued her attorney for malpractice. Defendant moved to dismiss at the close of plaintiff's proof on the ground that it was speculation to argue that the habit of throwing the water on the street caused the ice condition; the trial court agreed and dismissed the malpractice claim, finding that "Plaintiff failed to make a prima facie showing of legally malpractice whether she would have been successful in her underlying personal action." This Court reversed, declaring [id. at 330]: During trial, plaintiff testified that, as she stepped off the sidewalk in front of the fruit stand onto the roadway, she "slipped and fell on the ice." Although plaintiff could not say what caused the ice to accumulate, she presented the testimony of Mary, Italiano, the owner of the store next to the fruit stand, who assisted plaintiff on the day of her accident, and testified, in pertinent part, that the operators of the fruit stand had a habit of emptying buckets of water into the street, even when the temperature was below freezing. Evidence was also introduced at trial that there had been no precipitation on the day off the accident or the preceding three days, but that the temperature was at the freezing point... 11 Considering such evidence in a light most favorable to the plaintiff, there was sufficient evidence presented on plaintiff's case from which a jury could reasonably infer that the operators of the fruit stand engaged in acts that created the dangerous condition on which she fell. Ms. Italiano's testimony that she did not recall whether the water was thrown into the street the day before or on the day of the accident did not bar an inference that the operators of the fruit stand threw water out on those days, and created a factual issue for the jury to resolve. Accordingly, plaintiff sufficiently established her probability of success in the underlying action. Here, Anthony Maruffi's bare assertions that Pescatore did not own the barrel and did not tie it to the street sign where plaintiff fell is worthless. The trial court found that there were questions of fact as to whether Pescatore owned the subject barrel and Anthony Maruffi was unable to recall whether he was working at the parking lot on March 10, 2010. As he had no knowledge with regard to the barrel's placement that day, we fail to see how plaintiff's complaint could be dismissed solely based on his testimony. In Vulpis v. Arch Diner, 295 AD2d 340 [2d Dept. 2002], summary judgment was granted based on the testimony of defendant's vice president that the area where the plaintiff fell was not within the defendant's property line, but conclusive documentary evidence was not submitted to support the claim. The Second Department reversed, finding the vice president's affidavit "conclusory." In Toscano v. Gambella, 171 AD2d 860-1 [2d Dept. 1991] 12 ,2 a plaintiff slipped and fell in the sprinkler room of a building Gambella commenced a third-owned by defendant George Gambella. party action against Enterprises Packaging Inc. ["Enterprise"] which leased a portion of the premises to Armstrong Paint and Manufacturing Co., Ltd. ["Armstrong"]. Enterprise moved for summary judgment arguing that it did not own the portion of the basement where the plaintiff fell, that it never controlled that portion of the premises, and that Armstrong was solely responsible for maintaining same. These claims were supported by documentary evidence including the lease. Gambella contended that because Enterprise and Armstrong were closely held companies whose principals were brothers, summary judgment was inappropriate. The trial court denied Enterprise's motion, and the appellate division agreed, holding: On appeal, Enterprises contends that the Supreme Court erred in denying its motion for summary judgment because its lease did not include that portion of the premises where the plaintiff's accident occurred. We disagree. Although Enterprise did not lease the sprinkler room, in view of its close relationship to the third-party defendant Armstrong, triable issues of fact exist concerning whether Enterprises had access to and control over this portion of the premises. Accordingly, Enterprises' motion for summary judgment was properly denied. In Centeno v. City of NY, 204 AD2d 508 [2d Dept. 1994] and Finegold v. BUG, 202 AD2d 469 [2d Dept. 1994], motions for summary 2 The pertinent facts are taken from the record on appeal. 13 judgment were again denied despite sworn statements that defendants not involved in the work which caused plaintiff's accident,were where there was some ambiguity or doubt in the record as to the precise nature of the defendants' involvement in the work. While Anthony Maruffi had no knowledge of what occurred at the parking lot on March 10, 2010, it has been specifically held that affidavits or deposition testimony by persons with knowledge need not be accepted as conclusive evidence of the facts asserted therein, even unrebutted facts, where there is any issue as to the accuracy of same (see, Delprete v. Victory Mem. Hospital, 191 AD2d 673 [2d Dept. 1993][Affidavit of hospital administrator denying employer/employee relationship with physician insufficient to establish basis for summary judgment though allegation was not directly controverted]; Canosa v. Abadir, 165 AD2d 823 [2d Dept. 1990] [Physician's affidavit stating he performed operation properly insufficient]). As the Court stated in Andersen v. Betz, 150 AD2d 743,744 [2d Dept. 1989], a defendant does not "establish its right to judgment as a matter of law" where issues of fact remain "relating to the defendant's role in the design and implementation of [the instrumentality at issue], the circumstances of the accident, and the proximate cause of the accident." As long as the cause of an accident is unclear, "summary judgment is not warranted" [McDaniel v. Bonizzi, 143 AD2d 980 [2d Dept. 1988]]. 14 In Royal v. BUG, 122 AD2d 132,133 [2d Dept. 1986], plaintiff was injured when the stove in her kitchen "blew up" as she attempted The defendant Brooklyn Union Gas ["BUG"] moved forto light it. summary judgment asserting through documentary evidence and sworn. testimony that it did nothing wrong with respect to its maintenance Special Term denied the motion, and the Courtof the stove. affirmed, noting: The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such a showing requires denial of the motion regardless of the insufficiency of the opposing papers [cits.]. Here, the appellant failed to establish that its employees did not negligently perform repairs on the plaintiff's examinations before trial of the appellant's employees revealed the blockage of the flash tube in the oven, which had been discovered only two days subsequent to the accident, and the likelihood that this portion of the oven was not inspected during a service call regarding a gas leak only one month earlier. Moreover, the appellant serviceman testified that a clogged flash tube could cause both an escape of gas and a malfunction of the oven. Thus, the question as to whether the conduct of the appellant's employees amounted to negligence was properly determined to be one for the trier of fact [cits.]. Quite to the thestove. contrary, In Buckley v. Rockefeller Group Inc., 143 AD2d 623,624 [2d Dept. 1988], defendants moved for summary judgment claiming they did not operate or control the building in question although they had title to it. Apparently the opposing parties had no way of controverting this claim. Summary judgment was denied, and the Court affirmed, noting: 15 Since the only proof offered by the appellant to support their contention that they did not operate or control the premises was the unsubstantiated conclusory testimony of an employee at an abbreviated examination before trial, the Supreme Court properly denied appellant's motion for summary judgment [cits.]. The appellants failed to produce a lease or other documentation indicating that the transfer of the operation and control of the building to another party, and therefore failed to make a prima facie showing of entitlement to judgment as a matter of law [cits.]. Since a triable issue of fact remains with regard to appellant's liability in this action, the motion for summary judgment was properly denied. As the same Court noted in Raia Industries Inc, v. Young, 124 AD2d 722 [2d Dept. 1986], "The proponent of a motion for summary judgment is required to make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to eliminate any material issues of fact from the case. The failure to make such a showing requires denial of the motion, regardless of the insufficiency of the opposing papers [cits.]. Here, the [moving party] has failed to make the necessary prima facie showing" [emphasis ours]. Under such circumstances, a motion for summary judgment must be denied, as the Court of Appeals noted in Ayotte v. Gervasio, 81 NY2d 1056 [1993]. In this regard, the proof necessary on a motion for summary judgment is far more complete than that required to prevail at trial. See, Colt v. Great Atlantic & Pacific Tea Co., 209 AD2d 294,295-6 [1st Dept. 1994] [Defendant moving for summary judgment, unlike requirements at trial, has burden of establishing absence of 16 notice where plaintiff slipped on debris and established that floor was "commonly littered"]. These cases make it clear that an affidavit or deposition testimony with no evidentiary support or that which is contracted by documentary evidence, is insufficient to entitle a defendant to summary judgment. We respectfully submit that "the circumstantial evidence provides a nonspeculative basis for plaintiff's version of the accident" (DiVetri v. ABM Janitorial Serv., Inc., 119 AD3d 486, 487 [1st Dept. 2014]). Moreover, the certified Google Map street view images showed that a traffic barrel which Pescatore owned, was in the same location where plaintiff tripped over the wire 11 months prior to his accident. In addition, Pescatore failed to explain how two other similar traffic barrels had rope or wire affixing either their sign to the barrel or the barrel to their fence. Pescatore's contention that this Court should ignore the certified copies of the Google Streetview images is unpreserved. As it never contested this evidence below, we respectfully submit that it waived this argument. Regardless, although there are no reported Appellate Division decisions regarding the use of google maps, Federal courts have long deemed it appropriate to take judicial notice of geographical facts as observed through resources like Google Maps. See Fed. R. Evid. 201(b); Boyce Motor Lines v. United 17 States/ 342 U.S. 337, 344 [1952][Jackson, J., dissenting] ["We may, of course, take judicial notice of geography"]; United States v. Perea-Rey, 680 F.3d 1179, 1182 n.l [9th Cir. 2012][taking notice of a Google map and satellite image as a "source whose accuracy cannot reasonably be questioned"]; Citizens for Peace in Space v. City of Colorado Springs, 477 F.3d 1212, 1218 n.2 [10th Cir. 2007] [taking judicial notice of online distance calculations]; Rindfleisch v. Gentiva Health Sys., Inc 752 F. Supp. 2d 246, 259 n.13 [E.D.N.Y.r 2010][taking judicial notice of geographic information through Google Maps, and collecting similar cases]; United States v. Brown, 636 F. Supp. 2d 1116, 1124 n.l [D. Nev. 2009] [same]; David J. Dansky, The Google Knows Many Things: Judicial Notice in the Internet Era, 39 Colo. Law. 19, 24 [2010] ["Most courts are willing to take judicial notice of geographical facts and distances from private commercial websites such as MapQuest, Google Maps, and Google Earth."]). Google Maps' Street View feature consists of "panoramic, street-level photographs ... captured by cameras mounted on vehicles owned by Google that drive on public roads and photograph their surroundings" (Joffe v. Google, Inc., No. 11-17483, 2013 WL 6905957, at *1 ([9th Cir. Dec. 27, 2013], aff'g In re Google Inc. St. View Elec. Commc'n Litig., 794 F. Supp. 2d 1067 [N.D. Cal. 2011]) [rejecting Wiretap Act challenges to Street View based on its collection of Wi-Fi information]). As a result, Google Maps Street 18 View is not some sort of computer simulation. Rather, it provides a collection of numerous street-level photographs of a location and in this case, conclusive evidence that Pescatore not only controlled including the one involved in plaintiff's accident,the barrels, but placed them exactly where plaintiff's accident occurred. Given this evidence in conjunction with the non-party witness statements and deposition testimony, we respectfully submit that Pescatore failed to eliminate triable issues of fact as to whether it created or had actual or constructive notice of the hazardous condition and its motion should have been denied (see, Bettineschi v. Healy Elec. Contracting, Inc., 73 AD3d 1109, 1110 [2d Dept. 2010]) (C) We submit that Tai Ming's arguments that it did not own the property or have actual or constructive notice of the hazardous condition are without merit. Tai Ming's unsubstantiated assertion that the street sign was not on its property rings hollow. Indeed, "[i]t is not incumbent upon an injured party, however, to prove affirmatively that the owner of the abutting property had not in fact, at the time of the accident, divested itself of possession and control of the entire property" (65 N.Y. Jur. 2d Highways, Streets, and Bridges § 389, citing, Fochtman v. Gilman, 9 AD2d 904 [2d Dep't 1959]). 19 We submit that there is a question of fact as to whether Tai Ming had notice of the dangerous condition. Tai Ming fails to address the testimony of Norman Lau Kee, its vice president who had been parking his car at the subject parking lot "Twice a week (278, 289).on average" for the last 20 years Under these circumstances, we believe there is a triable issue regarding Tai Ming's notice of the' traffic barrel's placement and whether it observed or could have observed the dangerous condition prior to the plaintiff's accident. CONCLUSION Based upon the foregoing, it is respectfully submitted that the order should be reversed. Respectfully submitted, WADE T. MOPRIS, Esq. Attorney for Plaintiff-Appellant By A Kenneth J. Gorman, Esq. 225 Broadway, Suite 307 New York, N.Y. 10007 212-267-0033 20 PRINTING SPECIFICATIONS STATEMENT I hereby certify that the foregoing brief was prepared on a computer. Type: A monospaced typeface was used as follows: Courier NewName of typeface: Point size: 12 Line spacing: Double The total number of words in the brief,Word Count: inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of authorities, proof of service, printing specifications statement, or any authorized addendum containing statutes, rules, regulations, etc. is 4754. Dated: New York, New York September 13, 2016 Kenneth J.V-G0i:man7 EsqT