Marquez v City of New York

Marquez v City of New York 2008 NY Slip Op 01059 [48 AD3d 241] February 7, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 16, 2008

Raymond Marquez, Respondent,
v
City of New York et al., Appellants.

—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Drake A. Colley of counsel), for appellants.

R. David Marquez, Great Neck, for respondent.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 30, 2007, which denied defendants' motion for summary judgment dismissing this personal injury action based on exposure to secondhand smoke and referred their alternative request for a Frye hearing to the trial court, unanimously affirmed, without costs.

Defendants did not meet their initial burden to establish their prima facie entitlement to summary judgment since they failed to offer admissible proof that refuted plaintiff's claim of a causal connection between his bladder cancer and the secondhand smoke (SHS) he allegedly inhaled while incarcerated in city jails between August 1998 and January 2001. In support of their argument that the scientific community has not accepted the proposition that a causal connection exists between bladder cancer and SHS, defendants submitted an affirmation by counsel and an expert's unsworn statement (Zuckerman v City of New York, 49 NY2d 557, 563 [1980]; Grasso v Angerami, 79 NY2d 813 [1991]). Concur—Andrias, J.P., Nardelli, Williams, McGuire and Acosta, JJ. [See 2007 NY Slip Op 32320(U).]