Xianv.Tat Lee Supplies Co.

Appellate Division of the Supreme Court of the State of New YorkMar 19, 2019
94 N.Y.S.3d 438 (N.Y. App. Div. 2019)
94 N.Y.S.3d 438170 A.D.3d 5382019 N.Y. Slip Op. 2039

8743 Index 304347/09

03-19-2019

LI XIAN, et al., Plaintiffs–Respondents, v. TAT LEE SUPPLIES CO., INC., Defendant–Appellant, Lorimer Development, LLC, et al., Defendants.

Morton S. Minsley, New York, for appellant. Law Office of James Trainor, P.C., New York (James Trainor of counsel), for respondents.


Morton S. Minsley, New York, for appellant.

Law Office of James Trainor, P.C., New York (James Trainor of counsel), for respondents.

Sweeny, J.P., Webber, Gesmer, Singh, JJ.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about June 28, 2018, which denied defendant Tat Lee Supplies Co., Inc.'s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Defendant failed to establish prima facie that it is not responsible for the injuries sustained by plaintiffs as a result of a third-party assault in the vicinity of its building, since much of the evidence it submitted on the issue of proximate cause is inadmissible and may not be considered (see Kershaw v. Hospital for Special Surgery, 114 A.D.3d 75, 81–82, 978 N.Y.S.2d 13 [1st Dept. 2013], citing GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 967, 498 N.Y.S.2d 786, 489 N.E.2d 755 [1985] ). The nonparty witnesses' deposition transcripts are unsigned by the witnesses, and there is no notice to the witnesses requesting that they review and sign the transcripts (see CPLR 3116[a] ; Ramirez v. Willow Ridge Country Club, Inc., 84 A.D.3d 452, 453, 922 N.Y.S.2d 343 [1st Dept. 2011], lv denied 18 N.Y.3d 805, 940 N.Y.S.2d 215, 963 N.E.2d 792 [2012] ). Plaintiffs' criminal trial testimony transcripts are unauthenticated (see CPLR 4540[a] ; Hofstetter v. Goldenberg, 132 Misc. 772, 230 N.Y.S. 353 [App. Term. 1st Dept. 1982] ). The documents purportedly produced by the Kings County District Attorney's Office are also unauthenticated (see CPLR 4518[a] ).

Moreover, defendant failed to submit evidence as to the foreseeability of a third-party assault in the vicinity of its building, whether its failure to properly maintain its doors and door frames was a proximate cause of the assault, or whether it had actual or constructive notice of the alleged defect; it relied instead on gaps in plaintiff's evidence, which was insufficient to satisfy its burden as movant (see Hairston v. Liberty Behavioral Mgt. Corp., 157 A.D.3d 404, 405, 68 N.Y.S.3d 439 [1st Dept. 2018], lv dismissed 31 N.Y.3d 1036, 76 N.Y.S.3d 497, 100 N.E.3d 836 [2018] ; see also Brown v. Smith, 85 A.D.3d 1648, 1649, 924 N.Y.S.2d 867 [4th Dept. 2011] [movant cannot satisfy its initial burden of proof by relying on evidence submitted in opposition to motion] ).

We have considered defendant's remaining contentions and find them unavailing.