Henry T. Lau, Appellant,v.Margaret E. Pescatore Parking, Inc. et al., Respondents.BriefN.Y.November 16, 2017To Be Argued By: Eric P. Tosca New York County Clerk’s Index No. 103807/10 ileto gorfc Supreme Court APPELLATE DIVISION — FIRST DEPARTMENT HENRY T. LAU, Plaintiff-Appellant, against MARGARET E PESCATORE PARKING, INC., and TAI MING DEVELOPMENT CORP., Defendants-Respondents. BRIEF FOR DEFENDANT-RESPONDENT MARGARET E PESCATORE PARKING, INC. LAW OFFICES OF JAMES J. TOOMEY Attorneys for Defendant-Respondent Margaret E Pescatore Parking, Inc. 485 Lexington Avenue, 7th Floor New York, New York 10017 917-778-6600 etosca@travelers.com Of Counsel: Eric P. Tosca Printed on Recycled Paper TABLE OF CONTENTS Page TABLE OF AUTHORITIES iii QUESTIONS PRESENTED 1 PRELIMINARY STATEMENT 3 COUNTER-STATEMENT OF FACTS 5 POINT I THE ORDER OF THE SUPREME COURT SHOULD BE SUSTAINED DISMISSING THE COMPLAINT AND CROSS¬ CLAIMS AGAINST MARGARET E. PESCATORE PARKING, INC WHERE THE EVIDENCE IN ADMISSIBLE FORM DEMONSTRATED ON SUMMARY JUDGMENT WITHOUT SUFFICIENT ADMISSIBLE PROOF TO THE CONTRARY THAT MARGARET E. PESCATORE PARKING INC. DID NOT TETHER THE PARKING BARREL TO THE STREET SIGN AS IT ALLEGEDLY EXISTED ON THE NIGHT OF HENRY LAU’S ACCIDENT 11 POINT II THE ORDER OF THE LOWER COURT SHOULD BE SUSTAINED WHERE THE PLAINTIFF’S PROFFER OF EVIDENCE WAS INADMISSIBLE 23 POINT III THE ORDER OF THE LOWER COURT SHOULD BE SUSTAINED DISMISSING THE COMPLAINT AND DENYING THE PLAINTIFF’S UNTIMELY CROSS-MOTION FOR SPOLIATION SANCTIONS WHERE THERE WAS NO SHOWING THAT THE PLAINTIFF ACTUALLY POSSESSED THE CORD ALLEGEDLY INVOLVED IN HENRY LAU’S ACCIDENT 27 l POINT IV THE ORDER OF THE LOWER COURT SHOULD ALTERNATIVELY BE SUSTAINED SINCE THE PLAINTIFF’S CLAIMED DEFECT WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS. 29 CONCLUSION 30 PRINTING SPECIFICATIONS STATEMENT 31 ii TABLE OF AUTHORITIES Page(s) Cases Albano v. Pete Milano’s Discount Wines & Liquors, 43 A.D.3d 966, 842 N.Y.S.2d 524 (2d Dep’t 2007) Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1990) Andre v. Pomeroy, 35 N.Y.S. 2d 361, 320 N.E.2d 853 (1974) Bettineschi v. Healy Electrical Contracting, Inc., 73 A.D.3d 1109, 902 N.Y.S.2d 597 (2d Dep’t 2010) Blankman v. Incorporated Village of Sands Point, 249 A.D.2d 349, 670 N.Y.S.2d 802 (2d Dep’t 1998) Brito v. Manhattan and Bronx Surface Transit Operating Authority, 188 A.D.2d 253, 590 N.Y.S.2d 450 (1st Dep’t 1992) Cabezudo v. New York’s Eldorado, Inc., 550 A.D.2d 794, 378 N.Y.S.2d 75 (1st Dep’t 1975) Cuevas v. 1738 Associates, LLC, 96 A.D.3d 637, 946 N.Y.S.2d 576 (1st Dep’t 2012) Ehrlich v. American Moninga Greenhouse Manufacturing Corp., 26 N.Y.2d 255, 257 N.E.2d 890, 309 N.Y.S.2d 341(1970) Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 492 N.E.2d 774, 501 N.Y.S.2d 646 (1986) Great Northern Ins. Co. v. Estelle Irr. Corp., 124 A.D.3d 4311 N.Y.S.3d 52 (1st Dep’t 2015) Grenadier v. Surface Transportation of New York, 271 A.D. 460, 66 N.Y.S.2d 130 (1st Dep’t 1946) Guimond v. Village of Keeseville, 113 A.D.3d 895, 978 N.Y.S.2d 431 (3d Dep’t 2014) 29 12 12 20 12 20 18 28 12 21 28 18 19 iii Guimond v. Village of Keeseville, 113 A.D.3d 895, 978 N.Y.S.2d 431 (3d Dep’t 2014) Hartley v. Szadkowski, 32 A.D.2d 550, 300 N.Y.S.2d 82 (2d Dep’t 1969) Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 640 N.Y.S.2d 860, 663 N.E.2d 901 [1996] Hempstead Bank v. Reliance Mortg. Corp., 81 A.D.2d 906, 439N.Y.S.2d 202 (2d Dep’t 1981) Hendricks v. 691 8th Avenue Corp., 226 A.D.2d 192, 640 N.Y.S.2d 525 (1st Dep’t 1996) Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 14 N.E.2d 828 J.E. v. Beth Israel Hosp., 295 A.D.2d 281, 744 N.Y.S.2d 166 (1st Dep’t 2002), Iv. denied 99 N.Y.2d 507, 757 N.Y.S.2d 817, 787 N.E.2d 1163(2003) Jenkins v. New York City Housing Authority, 11 A.D.3d 358, 784 N.Y.S.2d 32 (1st Dep’t 2004) Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 978 N.Y.S.2d 13 (1st Dep’t 2013) Matter of Wood’s Estate, 52 N.Y.2d 139, 418 N.E.2d 365, 436 N.Y.S.2d 850 (1981). Miller v. City of New York, 253 A.D.2d 394, 677 N.Y.S.2d 111 (1st Dep’t 1998) Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795 (1994). Picerno v. New York City Transit Authority, 4 A.D.3d 349, 771 N.Y.S.2d 549 (2d Dep’t 2004) 19 18 21 26 22 19 19 22 27 26 13 21 22 iv Rizos v. Galini Seafood Restaurant, 89 A.D.3d 1004, 933 N.Y.S.2d 703 (2d Dep’t 2011) Rosso v. Beer Garden, Inc., 12 A.D.3d 152, 784 N.Y.S.2d 60 (1st Dep’t 2004) Ruback v. McCleary, Wallin & Crouse, 220 N.Y. 188, 115 N.E. 449 S.J. Capelin Associates v. Globe Mfg. Co., 34 N.Y.2d 338, 313 N.E.2d 776, 357 N.Y.S.2d 478 (1974). Verdon v. Port Authority of New York and New Jersey, 111 A.D.3d 580, 977 N.Y.S.2d 4 (1st Dep’t 2013) Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980), Statutes 21 18 19 12 21 12 CPLR § 4519 26 v QUESTIONS PRESENTED Should the order of the Supreme Court be sustained dismissing the1. complaint and cross-claims against Margaret E. Pescatore Parking, Inc. where the evidence in admissible form demonstrated on summary judgment without sufficient admissible proof to the contrary that Margaret E. Pescatore Parking Inc. did not tether the parking barrel to the street sign as it allegedly existed on the night of Henry Lau’s accident? It is respectfully submitted that question should be answered in the affirmative. Should the order of the lower court be sustained where the plaintiffs2. proffer of evidence was inadmissible? Although not specifically decided in the lower court opinion, it is respectfully submitted that question should be answered in the affirmative. Should the order of the lower court be sustained dismissing the3. complaint and denying the plaintiffs untimely cross-motion for spoliation sanctions where there was no showing that the plaintiff actually possessed the cord allegedly involved in Henry Lau’s accident? It is respectfully submitted that question should be answered in the affirmative. l 4. Should the order of the lower court alternatively be sustained since the plaintiffs claimed defect was open and obvious and not inherently dangerous? Although not decided by the lower court, it is respectfully submitted that question should be answered in the affirmative. 2 PRELIMINARY STATEMENT This brief is submitted on behalf of Margaret E. Pescatore Parking, Inc. (hereinafter referred to as “Pescatore”) in response to the seemingly limited appeal seeking to reinstate the complaint of Henry Lau modifying the order Honorable George Silver dated December 23, 2014. We respectfully submit that the lower court order should be sustained dismissing the complaint of the plaintiff and dismissing all claims against Margaret E. Pescatore Parking, Inc. (hereinafter referred to as “Pescatore”). The evidence proves that Pescatore did not tie the barrel to the sign post as demonstrated by the photographic evidence and by the testimony of Anthony Maruffi who testified that Pescatore did not use the traffic barrel in the parking lot operations and did not have any business practice of tying the subject traffic barrel to anything. Plaintiff failed to come forward with direct or circumstantial evidence showing that Pescatore tied the barrel to the sign post and, instead, speculates that Pescatore’s unrelated use of two different barrels is somehow connected to the barrel near the area of the plaintiffs accident. Henry Lau requested in his preliminary statement that the complaint should be reinstated and raises two points in the brief limited to reinstating the complaint against the defendants. Yet without any formal argument with reference to points in the brief and without any case law or other precedential support, the plaintiff proposes that spoliation sanctions against Pescatore are warranted. If this 3 Honorable Court considers the issue of spoliation on appeal, we respectfully submit that spoliation sanctions are not warranted. Pescatore at no time had possession of the alleged rope, wire or string involved in the accident. The last person demonstrated in the record to have come in contact with the rope or had ability to take photographs of the alleged rope tied to the barrel was Henry Lau. There is neither showing of spoliation nor any conduct warranting imposition of sanctions to form the basis for an order of preclusion or striking the answer. 4 COUNTER-STATEMENT OF FACTS The facts in the record demonstrate that Pescatore’s parking lot enterprise was operated at the property owned by Tai Ming Development Corp. (hereinafter referred to as “Tai Ming”) located at 100 Bayard Street. The plaintiffs accident occurred in front of the neighboring property located at 102 Bayard Street somewhere between the curb and a sign post on the sidewalk. By Henry Lau’s own testimony, the accident did not result from any sidewalk condition in front of the parking lot. While Mr. Lau claimed in his pleadings that the accident occurred when he tripped over a rope tied to a barrel at the curb of the street, there is no evidence, direct or circumstantial, to oppose the showing that Pescatore did not tie the barrel to the sign and, additionally, that Pescatore did not control the alleged barrel at the site of Mr. Lau’s accident. Henry Lau testified that on March 10, 2010 he left his place of employment at 9:15 P.M. to head home to his residence on Henry Street in Manhattan (R-101, 105). His accident occurred at 9:30 P.M. on Bayard Street as he was walking (R- 104-105). There was ambient lighting at the time of the accident from a streetlight (R-105). Before the accident, he walked past four or five people passing from the opposite direction on the sidewalk (R-107). Mr. Lau claimed that he had moved to the side to let people pass approximately one minute before the accident (R- 111). 5 Enigmatically, he walked along the curb until the accident occurred. As he was walking, he noticed a sign post on his left side and a barrel that was orange and white in color (R-108-109). At no time did Mr. Lau observe any cord either before or after the accident (R-l13, 118, 119). Mr. Lau did not recall if he ever saw the barrel or the street sign before the date of the accident (R-l13). He did not know if there was a parking lot on the block of his accident and he does not know the owner of the buildings in the area (R-l 15). The photographic evidence depicts the area of the accident and the alleged barrel (R-l26-127). The sign to which the cord was allegedly attached is clearly in front of the neighboring property at 102 Bayard Street. Despite allegations in the plaintiffs bill of particulars that a sidewalk condition scared Mr. Lau at the time of the accident, Mr. Lau specifically denied being scared by any sidewalk condition or any sidewalk defect (R-l18-119, 131). Mr. Lau denied prior problems with cord or the barrel before the accident (R-l19). Contrary to the factual rendition alleged by plaintiff, each of the non-party witnesses identified by Mr. Lau denied that he ever saw the rope or wire tied to the barrel at the area of the accident before the date of the accident. Mr. Tsang was a Mr. Lau’s co-worker (R-l55). Mr. Tsang testified that he went by the area once or twice a week before the accident. He saw something like the traffic barrel depicted 6 in the photograph shown to him only in the general area before the date of the accident. He did not see the rope before the date of the accident (R-165, 172). In the factual account of the plaintiffs brief, it is incorrectly asserted that Mr. Tsang saw the “subject” circular barrel moved around the area of the parking lot (App. Brief at pp. 16-17). Mr. Tsang saw the rectangular barrel with a parking sign being moved around (R-158-159). The subject circular barrel was only seen in the “small area” by the sign post as depicted in the photograph (R-365). The photograph identified by the witness was marked as Exhibit 1A, which was a reproduction of Exhibit 1 dated September 21, 2011 (R-156-157, 365). There was no evidence that the circular barrel allegedly near the scene of the accident was in an area other than near the sign post and there was no evidence that the barrel was used by Pescatore. When the group walked passed Mr. Lau, they had already passed the store front (R-163-164). Mr. Tsang stated that the accident happened in front of the store. He testified that the accident did not occur in front of the parking lot, but occurred in front of a store (R-169). The parking lot was not open for operation on the night of the accident (R-172). He does not know who owned the traffic barrel or the rope and he did not know who put the rope at the location of the accident (R- 172). 7 Consistent with Mr. Tsang’s testimony, Mr. Ho testified that he did not know who owned the barrel in question and had no personal knowledge of who moved any of the barrels (R-403; 172). Mr. Ho does not testify where he saw the barrels moved before the date of the accident, only that the barrel with the parking sign moved around “a bit” (R-403). The person who moved the barrels was not someone who he observed as having a function with the parking lot (R-404). Mr. Ho referred to the item tying the barrel at the time of the accident as a wire that was like a string or yam; he never saw the wire, which was the size of a string, at the scene of the accident before the plaintiffs accident and had no knowledge about the wire (R- 409-410). In the video taken by Mr. Yi, Mr. Yi told Mr. Maruffi that an older gentleman fell over a yellow rope, not a string as stated in his undated affirmation (R-358). Mr. Tsang referred to an orange colored rope at the area of the accident and stated he never saw it before the accident (R-165, 172). The description of the rope or wire is not even consistent with the white cord that tied the barrel to the fence or that tied the sign to the rectangular barrel used by Pescatore (R-188). Neither Mr. Ho nor Mr. Tsang saw how Mr. Lau fell (R-156; 401). Anthony Maruffi worked with his father John Maruffi operating the parking lot and they were employed at Pescatore for twenty years. He is the current manager of the parking lot (R-178-180). The parking lot is located at 98-100 8 Bayard Street (R-180). Mr. Maruffi’s father John served as manager previously, but was incapacitated at the time Anthony Maruffi appeared for the deposition. The late John Maruffi suffered from Stage IV Cancer and dementia (R- 182, 193). Since the time of the deposition, John Maruffi passed away (R-428). The parking lot has always operated Monday through Saturday, 8:00 A.M. to 6:00 P.M. (R-267). Anthony Maruffi did not work on Saturday. He worked week days and Sunday. Plaintiffs accident took place on Thursday (R-135). Therefore, Anthony Maruffi worked at the lot on March 10, 2010 (R-267). Mr. Maruffi did not have personal knowledge of the accident (R-267). Mr. Maruffi actively worked at the lot on a daily basis from opening until closing. Only he and his father worked at the lot at the time of the accident (R-192, 267). The parking lot only uses one traffic barrel for the parking operations. It is a traffic barrel that has a sign on it that says parking or parking is full. The parking lot has the capacity for twelve cars and is on ground level (R-182). When the lot is closed, a chain is placed across the lot (R-182). As part of the operations of the parking lot, only one square traffic barrel was used before and at the time of the plaintiffs accident (R-183). The traffic barrel that the lot uses has a sign affixed to it (R-185). At night, the sign and the barrel are placed in the lot behind the shack in the lot. The barrel stands free and is not affixed to anything (R-184). The barrel was always left in the parking lot after closing. Mr. Maruffi never 9 received any complaints about the barrel (R-185-186). The only other barrel at the parking lot was affixed to the fence by the kiosk by a white cord similar to the white cord used to affix the park sign to the rectangular barrel (R-l88). Anthony Maruffi never moved the round barrel that was allegedly involved in the plaintiffs accident (R-l90). The barrel allegedly at the area of the plaintiffs accident in the street near the sign post had been previously used by the occupants of the building next door during their construction work to hold the spot for garbage (R-l89). The barrel was used to hold a spot in front of the adjacent building (R-l89). 10 POINT I THE ORDER OF THE SUPREME COURT SHOULD BE SUSTAINED DISMISSING THE COMPLAINT AND CROSS¬ CLAIMS AGAINST MARGARET E. PESCATORE PARKING, INC. WHERE THE EVIDENCE IN ADMISSIBLE FORM DEMONSTRATED ON SUMMARY JUDGMENT WITHOUT SUFFICIENT ADMISSIBLE PROOF TO THE CONTRARY THAT MARGARET E. PESCATORE PARKING INC. DID NOT TETHER THE PARKING BARREL TO THE STREET SIGN AS IT ALLEGEDLY EXISTED ON THE NIGHT OF HENRY LAU’S ACCIDENT We respectfully submit that the lower court was correct in granting summary judgment to Pescatore. The plaintiff in his brief on this appeal concedes that he has no direct evidence to prove an essential element of his case, i.e., that the barrel in question was tied to the sign post by Pescatore employees. Pescatore demonstrated through the testimony of Anthony Maruffi that Pescatore did not tie the barrel to the sign post. Anthony Maruffi explicitly denied that Pescatore used the barrel before the accident, tied any free standing barrel, and did not control the barrel in question. In order to demonstrate an issue of fact, the plaintiff was required to come forward with proof in admissible form to demonstrate that the barrel was tied to the sign post at the area of the accident by Pescatore. We submit that the plaintiff failed to come forward with sufficient admissible evidence to prove that Pescatore was responsible for tethering the barrel to the sign post. 11 Summary judgment is a drastic remedy, but is appropriate when a showing has been made that there is no evidence to demonstrate a question of material fact. Mere conclusions, expressions of hope or surmise are insufficient to present a legitimate basis to oppose the grant of summary judgment. See, Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1990); Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980); Andre v. Pomeroy, 35 N.Y.S. 2d 361, 320 N.E.2d 853 (1974). It was incumbent upon the party seeking to avoid summary judgment to demonstrate the existence of an issue of material fact. Mere conclusions or suppositions are insufficient to oppose a prima facie showing of summary judgment. See, S.J. Capelin Associates v. Globe Mfg. Co., 34 N.Y.2d 338, 341, 313 N.E.2d 776, 357 N.Y.S.2d 478 (1974); Ehrlich v. American Moninga Greenhouse Manufacturing Corp., 26 N.Y.2d 255, 259, 257 N.E.2d 890, 309 N.Y.S.2d 341(1970); Blankman v. Incorporated Village of Sands Point, 249 A.D.2d 349, 350, 670 N.Y.S.2d 802 (2d Dep’t 1998). We submit that what the plaintiff offered in opposition is fraught with innuendo and conjecture. Furthermore, the evidence does not have admissible quality to amount to competent or probative evidence to prove a circumstantial case against Pescatore. 12 Anthony Maruffi’s testimony is competent testimony to make the prima facie showing of entitlement to summary judgment. Plaintiffs characterization of Anthony Maruffi’s testimony as “self-serving” does not defeat the evidentiary value of the testimony. Even the testimony of a named party or an interested party may serve as a basis for the grant of summary judgment. There is no basis to discount or dismiss Mr. Maruffi’s testimony as not competent evidence to satisfy the burden of showing entitlement to summary judgment. See, Miller v. City of New York, 253 A.D.2d 394, 395-396, 677 N.Y.S.2d 111, 112 (1st Dep’t 1998)[“ That an affidavit is submitted by a party or other interested person does not detract from its sufficiency as competent evidence (cites omitted). Thus, the burden shifts to plaintiff to ‘produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action’ (cites omitted).”]. The plaintiff inexplicably continues to question that John Maruffi was not produced as a witness. Anthony Maruffi attested that his father John was not able to testify. We produced the death certificate showing that John Maruffi is deceased. John Maruffi had Cancer and dementia. Not until Mr. Lau was faced with a summary judgment motion does he question why John Maruffi was not produced. 13 With that said, Anthony Maruffi was at the parking lot on a daily basis and was very familiar with the routine and operation of the lot during the time he worked there. When his father became ill, Anthony Maruffi undertook management operations. He is a competent witness to testify as to the barrels used and the fact that the barrel in question was not used by Pescatore. As a fact witness, he testified that the barrel allegedly next to the plaintiff at the time of the accident was utilized by the next door neighbor. He testified that the barrel with the parking sign attached, clearly demarcated by the address of the parking lot, was taken inside at night when the lot closed. Contrary to the plaintiffs contention, the proof demonstrates only that the plaintiffs accident occurred in front of the neighboring property. The photographic evidence shows that the accident happened in front of the 102 Bayard Street and Mr. Lau’s own designated witness testified that the area of the accident was in front of the store located at 102 Bayard Street. Plaintiff produced no proof to the contrary. The direct evidence establishes that the accident occurred in front of the building adjacent to Tai Ming’s property. We submit that the evidence upon which the plaintiff relies is not admissible and cannot be used at a trial or as viable opposition to the summary judgment motion. However, before we reach that issue, the evidence upon which the plaintiff relies is not probative to the plaintiffs circumstantial case against 14 Pescatore. In the introductory remarks, plaintiff extrapolates from unconnected pieces of evidence broad conclusions that are not legally inferable. In his argument, the plaintiff melds together distinct barrels that are unrelated. It is important to point out that the photographs show three different barrels: one barrel that is attached to the fence in front of the kiosk, another barrel rectangular or square in shape that is demarcated by the address of the lot, and the barrel that is demarcated by the letters “EXP” and alleged to be the barrel tied to the sign post at the scene of the accident. While the plaintiff in the introductory remarks speaks of the barrels collectively, they are not the same and there is no basis to treat them collectively in speaking of Pescatore’s use of barrels. The proof shows only that Pescatore made use of the rectangular barrel which was demarcated with the parking lot address on it and that there was only one circular barrel affixed to the fence by the kiosk. Plaintiffs contention that Pescatore’s use of these two barrels is sufficient to present a question of fact that Pescatore tethered another circular barrel to the sign post calls for speculation. Despite his contentions in the brief, plaintiff never demonstrated a business practice of tying barrels in the street or on the sidewalk to contradict Anthony Maruffi’s testifying to the business practice of putting away at close of business the barrel that Pescatore used without tying the barrel to anything (R- 185, p. 29). 15 There was never a time when the barrel used by the parking lot was not in the lot after closing and until opening the lot in the morning (R-l 85 p. 30). The plaintiff has no circumstantial evidence, let alone direct evidence, that Pescatore tied the barrel to the sign post as it purportedly existed at the time of the accident. Indeed, looking at every photograph produced by plaintiff, no barrel is tethered to the sign post. In fact, the barrel alleged to have been involved in the accident is shown free standing in the street and never tethered to anything. None of the photographs show that barrel in use by the parking lot. The plaintiffs own evidence demonstrates that there was no practice of tying the barrel to the signpost. Each witness who testified denied knowledge of seeing any similar barrel to the one plaintiff claimed was involved in the accident tied to anything at any time of the day or night. While we object to the introduction of the video of plaintiffs counsel’s questions to John Maruffi, Mr. Maruffi denied knowing anything about the plaintiffs accident or about anyone’s tying the barrel to anything. The photographs secured from the Google website offer no relevant or probative evidence. The traffic barrel depicted at the area of the signpost almost one year before the accident is not the same barrel as the barrel that plaintiff proposed was near the area at the time of his accident. There is no showing of a barrel owned by Pescatore was ever attached to a sign post. The barrel in the Google photographs is clearly demarcated by the parking lot address. 16 The sole piece of evidence upon which plaintiff relies to support plaintiffs contention that Pescatore was to blame for the tying of the barrel to the sign post was a photograph that shows another traffic barrel tied to a fence of the parking lot. Anthony Maruffi testified that the barrel affixed to the fence was always at that location and never moved. He did not know how it came to be affixed to the fence. Henry Lau improperly seeks to use this singular affixed barrel on the opposite side of the property from the area of the accident as evidence that Pescatore tied an unrelated barrel to the sign post. It is notable that the barrel affixed to the fence near the kiosk is tied from the top of the barrel whereas the non-party witnesses’ testimony was that the barrel near the accident scene was tied to the body of the barrel. Additionally, the witnesses’ descriptions of the wire/string or orange rope are dissimilar to the material used to tie the barrel to the fence. We respectfully submit that plaintiffs conclusion is simply speculative and requires unwarranted inferences to arrive at the conclusion that the plaintiff posits. Anthony Maruffi testified that he did not know who attached the one barrel to the fence near the kiosk. Even if an inference were permitted that Pescatore originally affixed one traffic barrel to the fence, it is conjecture to derive from this that Pescatore tied the barrel to the sign post on the night of Mr. Lau’s accident. Prior conduct or acts have been held inadmissible to prove an act or conduct at the 17 time of the accident. Especially in this case, where a barrel affixed to a fence on the parking lot property of an unknown origin is unconnected to tying a different barrel to a street sign; the photographs are not probative and provide no relevant proof in admissible form. See, Cabezudo v. New York's Eldorado, Inc., 550 A.D.2d 794, 378 N.Y.S.2d 75 (1st Dep’t 1975); Hartley v. Szadkowski, 32 A.D.2d 550, 300 N.Y.S.2d 82 (2d Dep’t 1969); Grenadier v. Surface Transportation of New York, 271 A.D. 460, 66 N.Y.S.2d 130 (1st Dep’t 1946). The barrel attached to the fence has no bearing on and is not competent proof of the ownership of the barrel allegedly next to the plaintiff at the time of his fall; and it is not competent proof of the tying of a barrel to the sign post. See, Rosso v. Beer Garden, Inc., 12 A.D.3d 152, 154, 784 N.Y.S.2d 60, 62-63 (1st Dep’t 2004)[“... it is well established that evidence of a person's acts on any particular occasion is not admissible to show that such person acted in a similar fashion on a different, unrelated occasion.”]. The unclear lettering that plaintiff posits spells “LOT” on the traffic barrel designated with bold black letters “EXP” near the street sign is not proof that the barrel belonged to Pescatore. We do not know who wrote those letters, what “LOT” means or which “LOT” is referred to. The photographs were taken after the accident and there is no testimony to suggest that those letters existed at the time of the accident. The non-party witnesses never attested that there was any 18 lettering that they saw on the traffic barrel. We submit that there is insufficient evidence to counter Mr. Maruffi’s testimony that Pescatore did not use the traffic barrel allegedly found near the accident scene. More importantly, there is no evidence to show that Pescatore tied the barrel to the street sign. Plaintiffs proffered proof does not exclude other causes of the alleged tethering to remote possibilities. “‘[Wjhere there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which defendant was responsible’ (Ruback v. McCleary, Wallin & Crouse, 220 N.Y. 188, 195, 115 N.E. 449; accord Ingersoli v. Liberty Bank of Buffalo, 278 N.Y. 1, 14 N.E.2d 828).” J.E. v. Beth Israel Hasp., 295 A.D.2d 281, 284, 744 N.Y.S.2d 166, 170 (1st Dep’t 2002), Iv. denied 99 N.Y.2d 507, 757 N.Y.S.2d 817, 787 N.E.2d 1163(2003). Anthony Maruffi testified that he had seen occupants in the adjacent property use the traffic barrel in question on occasions to keep traffic from parking in front of their building. The traffic barrel was left at the site after a street renovation project. Anyone on the street had access to the barrel. Plaintiffs cases cited in support of his argument are distinguishable. See, e.g., Guimondv. Village ofKeeseville, 113 A.D.3d 895, 978 N.Y.S.2d 431 (3d Dep’t 2014)[alleged defect proved by plaintiffs expert to have occurred shortly after construction where one of two defendants was responsible depending on 19 which position between the defendants is credited at trial]; Bettineschi v. Healy Electrical Contracting, Inc., 73 A.D.3d 1109, 902 N.Y.S.2d 597 (2d Dep’t 2010)[circumstantial case based upon contractor who performed cable wiring in a room requiring access by removing raised flooring tiles in a case where a worker fell through a part of the floor with missing tiles]; Brito v. Manhattan and Bronx Surface Transit Operating Authority, 188 A.D.2d 253, 590 N.Y.S.2d 450 (1st Dep’t 1992)[circumstantial evidence allowed to show that plaintiff was struck by a bus based upon eyewitnesses who saw plaintiff lying in the crosswalk after bus drove from area of the accident and expert testimony showing the injuries were inconsistent with anything but crush type injuries]. In each of these cases, there was proof that allowed a finder of fact to conclude that the defendant was responsible for the defect or negligent use. There is no proof that Pescatore made negligent use of the barrel in question. Consistent with Justice Silver’s holding, this Honorable Court has held that a case of circumstantial evidence is not viable where guesswork is necessary to conclude that the defendant is responsible for any alleged defect. In a case where it is not possible to determine who was responsible for the alleged defect, this Honorable Court has found that there is no viable circumstantial case. Third-party and second third-party defendants (the lumber suppliers) showed that the circumstantial evidence through which defendants sought to prove the identity of the supplier of the lumber used to construct the guardrail was insufficient to establish a “reasonable probability” that one of them was the 20 supplier ( see Healey v. Firestone Tire & Rubber Co., 87 N.Y.2d 596, 603, 640 N.Y.S.2d 860, 663 N.E.2d 901 [1996] ). The evidence establishes that the lumber received at the construction site from each of the lumber suppliers was not stored separately and that the lumber used to build the guardrails on the trailing platform was taken from stockpiles of lumber that were not designated by the supplier. Verdon v. Port Authority of New York and New Jersey, 111 A.D.3d 580, 977 N.Y.S.2d 4 (1st Dep’t 2013). Moreover, Mr. Lau failed to identify the item that caused his fall even if the testimony of the plaintiffs co-employee is credited. There is no witness that testified that they observed the plaintiffs actual fall or how the plaintiff fell. There is no way to tell if Mr. Lau fell as a result of becoming entangled in wire or if Mr. Lau’s fall caused him to become entangled in wire. See, Rizos v. Galini Seafood Restaurant, 89 A.D.3d 1004, 933 N.Y.S.2d 703 (2d Dep’t 2011). Pescatore was not a property owner and owed no duty to the plaintiff for a sidewalk condition, much less one in front of an adjacent property. In addition to the lack of any duty by Pescatore to the plaintiff, there is demonstrated lack of notice of any defective condition, which is a necessary element to a negligence claim. Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 838, 492 N.E.2d 774, 775, 501 N.Y.S.2d 646, 647 (1986). Pescatore did not tie the rope or wire to the barrel. Even as against an owner, there is no evidence to demonstrate how long the rope or wire was tied to the barrel and, as such, notice is lacking in the plaintiffs case in order to sustain a case based on negligence. See, Piacquadio 21 V. Recine Realty Corp., 84 N.Y.2d 967, 622 N.Y.S.2d 493, 646 N.E.2d 795 (1994); Picerno v. New York City Transit Authority, 4 A.D.3d 349, 771 N.Y.S.2d 549 (2d Dep’t 2004); Jenkins v. New York City Housing Authority, 11 A.D.3d 358, 784 N.Y.S.2d 32 (1st Dep’t 2004); Hendricks v. 691 8th Avenue Corp., 226 A.D.2d 192, 640 N.Y.S.2d 525 (1st Dep’t 1996). 22 POINT II THE ORDER OF THE LOWER COURT SHOULD BE SUSTAINED WHERE THE PLAINTIFF’S PROFFER OF EVIDENCE WAS INADMISSIBLE We submit that the plaintiffs proffered evidence is not in admissible form and should be disregarded as incompetent. Notwithstanding the lack of probative value to the issues in this case, we submit that the proof that the plaintiff submits in opposition to the summary judgment motion lacks qualitative form and cannot be used at trial. The Google photographs are not properly introduced as evidence by a witness with knowledge. Plaintiffs footnote in a belated attempt to qualify the slicing of photographs as evidence should not be accepted on this appeal. Counsel’s explanation of the photographs allegedly secured from an internet search is not based on personal knowledge of when and where the photographs were taken. There is no evidence that the splicing was performed properly. There is no witness testimony to verify that anyone from the parking lot was using the traffic barrel depicted in the photographs. There is no proof in admissible form demonstrating that the traffic barrel was owned by anyone connected with the parking lot. The video tape of the late John Maruffi should be excluded for any one of a number of reasons. For one, the video is unclear. Plaintiffs counsel’s leading 23 questions to John Maruffi, who appeared confused by the questioning and rightfully suspicious of plaintiffs counsel’s motives, were not fairly presented. There is no basis for plaintiffs contention that John Maruffi concedes Pescatore owned the barrel. The video is rife with Mr. Yi’s paraphrasing Mr. Marufffs words. Mr. Yi was not clear in the beginning of the video when he asked Mr. Maruffi if the barrel was Mr. Marufffs barrel. Mr. Yi obviously understood that his questions as to which barrel belonged to Mr. Maruffi were unclear in the beginning of the question and answer session. When one views the end of the video, Mr. Yi points to the specific barrel by the street sign. At that point, John Maruffi points in the direction of the square like barrel with the sign on it and denies that the barrel by the street sign is his. Nowhere in the video does Mr. Maruffi ever say that Pescatore owned any barrel. Mr. Yi never asked if the barrels belong to Pescatore. The video is not a fair question and answer session and should be dismissed as unreliable. Plaintiff also makes the bold assertion that John Maruffi stated that he owned the wire attached to the barrel. However, in response to Mr. Yi’s questions, Mr. Maruffi denied any knowledge about the “yellow rope”. Mr. Yi never referred to the item that was allegedly tied to the barrel as a wire, contrary to his affidavit. There is nothing in John Marufffs statements that concede possession or 24 ownership of any rope or wire allegedly attaching the barrel to the sign post on the night of the Mr. Lau’s accident. Mr. Yi presents an affidavit regarding the video and the discussion with Mr. Maruffi. The affidavit is inconsistent with the video and seeks to interpret more from the video than what was actually recorded. Mr. Yi’s constant shifting of focus with the video camera makes it difficult to tell which barrel the parties are discussing at any given time. When Mr. Yi specifically went over to the barrel toward the end of the video to ask if the barrel was his, Mr. Maruffi denies it by pointing to the barrel with the parking sign on it as his barrel. Furthermore, Mr. Yi never asked Mr. Maruffi if Pescatore owned the barrel by the sign post. His questions regarding any barrels at the site were personal to Mr. Maruffi and related to whether or not Mr. Maruffi owned the barrel. While the video cannot be fairly interpreted as Mr. Maruffi admitting ownership of the barrel, even if one could fairly interpret that Mr. Maruffi stated that the barrel was his, his statement is not an admission on Pescatore’s part or an admission that Pescatore owned the barrel. Significantly, Mr. Maruffi did not state that he ever tied the barrel to anything at any time. Secondly, Mr. Yi is an associate of the firm representing the plaintiff. He has a financial interest in the outcome of the case and should not have taken any question and answer session with anyone he expected to sue in this action. 25 Thirdly, Mr. Yi now holds himself out as a witness in this case. As an attorney or an associate of the law firm representing the plaintiff he cannot put himself in the position of giving witness testimony and his affidavit should be excluded and so should the video recording taken by Mr. Yi. Cf, Hempstead Bank v. Reliance Mortg. Corp., 81 A.D.2d 906, 439 N.Y.S.2d 202 (2d Dep’t 1981). Finally, given Mr. Yi’s interest in the case or interest on behalf of his client, the video and statements by Mr. Yi constitute statements taken by Mr. Maruffi who is now deceased. Under Section 4519 of the Civil Practice Laws and Rules, otherwise known as the Dead Man’s Statute, the video and any other hearsay statement attested by Mr. Yi are inadmissible. See, Matter of Wood's Estate, 52 N.Y.2d 139, 418 N.E.2d 365, 436 N.Y.S.2d 850 (1981). 26 POINT III THE ORDER OF THE LOWER COURT SHOULD BE SUSTAINED DISMISSING THE COMPLAINT AND DENYING THE PLAINTIFF’S UNTIMELY CROSS-MOTION FOR SPOLIATION SANCTIONS WHERE THERE WAS NO SHOWING THAT THE PLAINTIFF ACTUALLY POSSESSED THE CORD ALLEGEDLY INVOLVED IN HENRY LAU’S ACCIDENT At the outset, we note that the plaintiffs cross-motion for dispositive relief was untimely. It is significantly different from the relief sought by Pescatore and was not correctly denominated as a cross-motion. The motion was made beyond the deadline for summary judgment motions. The lack of merits notwithstanding, the motion to strike the answer was made well after one hundred twenty days after the filing of plaintiffs second note of issue. See, Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 978 N.Y.S.2d 13 (1st Dep’t 2013). The plaintiffs appeal does not raise as a separate point on the appeal the issue of spoliation. We submit that the plaintiffs lack of support on appeal for the requested sanctions against Pescatore does not properly preserve the argument for the appeal. The appellant’s brief fails to cite to a single case supporting its request for sanctions. Significantly, the plaintiff fails to demonstrate proof that Pescatore took possession of the cord after the accident. The only person demonstrated in the record to have any contact with the cord after the accident was Mr. Lau himself. 27 The motion is also without merit. The plaintiff did not demonstrate that the alleged rope or wire was ever in the possession of Pescatore or any of its agents and employees. A number of people had access to the barrel. We respectfully submit that any sanction against Pescatore is unwarranted since there is no showing that Pescatore had the rope or wire allegedly involved in the plaintiffs accident. See, Great Northern Ins. Co. v. Estelle Irr. Corp., 124 A.D.3d 4311 N.Y.S.3d 52 (1st Dep’t 2015). There was no support for the plaintiffs late application for either preclusion or striking the answer since plaintiff has no proof that Pescatore ever used any tying device, be it any one of the multiple descriptions given by the alleged witnesses, i.e., rope or wire, to tie a construction barrel to the sign post. Given the inconsistent descriptions of the tying device given by the plaintiffs co-employees, we do not know what kind of item was at the scene of the accident. We do not know that it was not taken by someone at the accident scene in the first place and we have no proof that the alleged tying device was owned, possessed or maintained by Pescatore in the second place. Indeed, any sanction imposed should be against the plaintiff himself who was the last person to have contact with the alleged cord, wire or rope. There is simply no basis for the cross-motion against Pescatore. See, Cuevas v. 1738 Associates, LLC, 96 A.D.3d 637, 946 N.Y.S.2d 576 (1st Dep’t 2012). 28 POINT IV THE ORDER OF THE LOWER COURT SHOULD ALTERNATIVELY BE SUSTAINED SINCE THE PLAINTIFF’S CLAIMED DEFECT WAS OPEN AND OBVIOUS AND NOT INHERENTLY DANGEROUS Independent of the arguments for summary judgment as discussed below, we submit that there is no inherent danger to a tethered barrel. The barrel was allegedly attached to a sign post at the curb, which is off from the main sidewalk. It is not inherently dangerous and is open and obvious. Mr. Lau walked off the main sidewalk and continued to walk along the curb although he had time to move onto the main walkway after his acquaintances passed by. Even if the plaintiff s testimony was sufficient to demonstrate that entanglement in the cord actually caused his fall, the barrel and the cord were obvious. No matter who owned the barrel or tied the barrel to the sign post, there was no inherent danger to pedestrians since the cord attached to the barrel was easily avoidable. See, Albano v. Pete Milano's Discount Wines & Liquors, 43 A.D.3d 966, 842 N.Y.S.2d 524 (2d Dep’t 2007). 29 CONCLUSION For the reasons set forth above, we respectfully submit that the appeal of Henry T. Lau should be denied and that the order of the lower court dismissing the complaint and cross-claims against Pescatore should be sustained. Dated: New York, New York July 31,2016 Respectfully submitted, LAW OFFICE OF JAMES J. TOOMEY Attorneys for Defendant-Respondent Margaret E. Pescatore Parking, Inc. 485 Lexington Avenue- 7th Floor New York, New York 10017 (917) 778-6600 By: ERIC P. TOSCA An Associate of the Firm 30 Printing Specifications Statement I hereby certify pursuant to § 600.10(d) that the foregoing brief was prepared on a computer (or a word processor). A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: Line spacing: Double-spaced 14 The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 6,443. Dated: New York, New York July 31, 2016 Respectfully submitted, LAW OFFICE OF JAMES J. TOOMEY Attorneys for Defendant -Respondent Margaret E. Pescatore Parking, Inc. 485 Lexington Avenue, 7th Floor New York, New York 10017 917-778-6616 By: Eric P. Tosca An Associate of the Firm 31