DiBartolomeo v St. Peter's Hosp. of the City of Albany
Annotate this CaseDecided on October 8, 2009
Supreme Court, Albany County
Ruth E. DiBartolomeo, individually and as Executrix of the Estate of AMEDEO DiBARTOLOMEO, Plaintiff,
against
St. Peter's Hospital of the City of Albany, Defendant.
5188-08
Powers & Santola, LLP
Timothy Higgins, Esq.
Attorneys for Plaintiff
39 North Pearl Street
Albany, New York 12207
Thorn, Gershon, Tymann and Bonanni, LLP
Mandy McFarland, Esq.
Attorneys for Defendant
5 Wembley Court, New Karner Road
PO Box 15054
Albany, New York 12212
Joseph C. Teresi, J.
On February 13, 2007, Amedeo DiBartolomeo was walking, with his wife, on property owned by Defendant. He fell while descending a temporary curb ramp, placed on Defendant's property as part of a construction project. Mr. DiBartolomeo died as a consequence of the fall, according to his "Certificate of Death".
Plaintiff commenced this action, as Executrix of Mr. DiBartolomeo's estate, against Defendant seeking damages. Issue was joined, a Note of Issue has been filed but Defendant has failed to fully comply with Plaintiff's discovery demands. Defendant now moves for summary [*2]judgment of Plaintiff's claims, which is opposed by Plaintiff on the merits and under CPLR §3212(f). Because Defendant failed to demonstrate its entitlement to judgment as a matter of law, its motion is denied.
"[S]ummary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue." (Napierski v. Finn, 229 AD2d 869, 870 [3d Dept. 1996]).
On a motion for summary judgment, the movant must "make a prima facie showing of entitlement to judgment as a matter of law." (Ferluckaj v. Goldman Sachs & Co., 12 NY3d 316 [2009] quoting Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). "It... is incumbent upon the proponent to tender sufficient evidentiary proof in admissible form to warrant a judgment in its favor." (Salas v. Town of Lake Luzerne, 265 AD2d 770 [3d Dept. 1999]; see CPLR §3212[b] [stating that a summary judgment motion "shall be supported by affidavit, [which] shall be by a person having knowledge of the facts..."]). While the submission of only an attorney's affidavit, with attachments based upon personal knowledge, is not fatal to the proponent's motion for summary judgment (Olan v. Farrell Lines Inc., 64 NY2d 1092 [1985]), the motion must still be supported by a "person having knowledge of the facts" and otherwise "admissible proof". (CPLR §3212(b) and Alvarez v. Prospect Hospital, supra). Moreover, a movant fails to meet their burden by "pointing to gaps in... proof", rather the movant's obligation on the motion is an affirmative one. (Antonucci v. Emeco Industries, Inc., 223 AD2d 913, 914 [3d Dept.1996]). If the movant establishes their right to judgment as a matter of law, the burden then shifts to the opponent of the motion to establish by admissible proof, the existence of genuine issues of fact. (Zuckerman v. City of New York, 49 NY2d 557 [1980]).
On this motion, the landowner Defendant has "the threshold burden when seeking summary judgment of establishing that [they] maintained the premises in a reasonably safe condition and neither created nor had actual or constructive notice of the allegedly dangerous condition." (Candelario v. Watervliet Housing Authority, 46 AD3d 1073, 1074 [3d Dept. 2007]; Hagin v. Sears, Roebuck and Company, 61 AD3d 1264 [3d Dept. 2009]; Mazerbo v. Murphy, 52 AD3d 1064 [3d Dept. 2008]); Moriarity v. Wallace Development Co., LLC, 61 AD3d 1088 [3d Dept. 2009]).
Here, Defendant failed to demonstrate its entitlement to judgment as a matter of law, with admissible proof. Defendant supports its motion with only their attorney's affirmation, and the exhibits attached thereto. Defendant's attorney's affidavit does not claim personal knowledge of the facts herein, and as such provides no factual basis for the relief it seeks. Defendant attached to its motion its "Response to [Plaintiff's] Notice to Admit" and other discovery responses. Such documents, however, fail to detail and explain, by a person with actual knowledge, that Defendant properly maintained the premises and neither created nor had actual or constructive notice of the allegedly dangerous condition. Additionally, Defendant supports its motion with two deposition transcripts, one by Plaintiff and the second by Richard Wilson. Plaintiff's deposition, while duly executed and based upon personal knowledge, cannot and does not establish Defendant's maintenance of the ramp where Mr. DiBartolomeo fell, Defendant's actual or constructive notice of the ramp's allegedly dangerous condition, or that Defendant did not create the allegedly dangerous condition. Richard Wilson's deposition testimony similarly fails to properly support Defendant's motion, because it is unsigned and uncertified. Defendant [*3]provides no explanation for the use of this unsigned deposition transcript; nor did it demonstrate compliance with CPLR §3116(a)'s 60 day exchange provision to justify the use and consideration of this unsigned deposition transcript. Moreover, Richard Wilson's deposition transcript is not certified as accurate by the stenographer. As Defendant wholly failed to demonstrate the admissibility of Richard Wilson's unsigned deposition it is not properly before this Court, is of no probative value, and is not considered. (See generally In re Estate of Ciraolo, 10 Misc 3d 1070(A) [Sur. Ct. Kings Co. 2005], Chisholm v. Mahoney, 302 AD2d 792 [3d Dept. 2003]). Because Defendant has failed to demonstrate its entitlement to judgment as a matter of law with sufficient and admissible evidence, its motion for summary judgment is denied.
Nor has the above proof demonstrated, as a matter of law, that the alleged dangerous condition existing on Defendant's property was not the proximate cause of Mr. DiBartolomeo's injury. Especially in light of the fact that "proximate cause is ordinarily a question of fact for a jury to resolve." (Schlanger v. Doe, 53 AD3d 827 [3d Dept. 2008]).Because Defendant failed to shift the burden of proof on its motion, Plaintiff's opposition to Defendant's motion under CPLR §3212(f) is rejected as moot. However, Plaintiff did demonstrate that two of its discovery demands were duly served but not properly answered. Accordingly, Defendant shall, within ten days from the date of this Decision and Order, fully comply with the Plaintiff's outstanding discovery demands.
This Decision and Order is being returned to the attorneys for Plaintiff. A copy of this Decision and Order and all other original papers submitted on this motion are being delivered to the Albany County Clerk for filing. The signing of this Decision and Order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provision of that section respecting filing, entry and notice of entry.
So Ordered.
Dated:October, 2009
Albany, New York
Joseph C. Teresi, J.S.C.
PAPERS CONSIDERED:
1.Notice of Motion, dated September 14, 2009, Affidavit of Mandy McFarland, dated September 14, 2009, with attached Exhibits A-K.
2.Affidavit of Frederick Bremer, dated September 24, 2009, Affirmation of Timothy Higgins, dated September 24, 2009, with attached Exhibits A-J.
3.Affidavit of Mandy McFarland, dated September 30, 2009.
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