KXK Foods Corp. v Ta-Chiun Chou

[*1] KXK Foods Corp. v Ta-Chiun Chou 2007 NY Slip Op 51383(U) [16 Misc 3d 1111(A)] Decided on July 17, 2007 Supreme Court, Kings County Kurtz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 17, 2007
Supreme Court, Kings County

KXK Foods Corporation d/b/a THE GRECIAN CORNER RESTAURANT, Plaintiff,

against

Ta-Chiun Chou and 234 SEVENTH AVENUE OWNERS CORPORATION, Defendants.



34663/04

Donald Scott Kurtz, J.

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

Defendants Ta- Chiun Chou (hereinafter "Chou") and 234 Seventh Avenue Owners Corporation (hereinafter "Owner's Corp.") each move for an Order, pursuant to CPLR §3212, granting summary judgment in each defendant's respective favor, dismissing the complaint.

Plaintiff commenced the within action to recover for property damage allegedly sustained to its restaurant by water from Chou's fourth floor apartment above it on August 29, 2004. Plaintiff in its verified complaint alleges the following: that Chou negligently and carelessly allowed or permitted water to overflow from the bathtub of his fourth floor apartment; that Chou negligently and carelessly allowed or permitted his approximately 4 year old godson (hereinafter "the toddler") to turn on the water in the bathroom without adult supervision; that Chou negligently and carelessly failed to inspect the aforementioned bathtub during or after its use by the toddler and left the apartment with the water running; that as a result of Chou's negligence, the water in the bathtub overflowed into the two apartments below and eventually to the restaurant on the first floor, causing damage thereto; and that there was a delay in stopping the [*2]flow of water into and onto plaintiff's restaurant due to Owner's Corp.'s failure to install or have accessible to plaintiff a main water shut-off valve.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). In light of such a showing, if the party opposing the motion comes forward with evidence of issues of fact requiring a trial, the motion will be denied. See Rebecchi v. Whitmore, 172 AD2d 600 (2d Dept 1991). If a defendant's motion for summary judgment fails to establish by evidence in admissible form that the defendant is entitled to summary judgment as a matter of law, defendant's motion must be denied regardless of the sufficiency of the opposing papers. See Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985); Alvarez v. Prospect Hospital, 68 NY2d at 324.

A deposition transcript of a witness submitted in support of a motion for summary judgment is not in admissible form unless it is either signed by that witness or previously forwarded to the witness for his or her review. See CPLR §3116(a); Pina Flik International Corp., 25 AD3d 772 (2d Dept 2006); Santos v. Intown Associates, 17 AD3d 564 (2d Dept 2005). If the deposition transcript is forwarded to the witness and "the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed." CPLR §3116(a). See Id. Moreover, unsworn affidavits are inadmissible and cannot be considered. See Pina Flik International Corp., 25 AD3d at 773; Santos v. Intown Associates, 17 AD3d at 565; Abrahamsen v. Brockway Glass Co., Inc., 156 AD2d 615 (2d Dept 1989); Jacobs v. Schleicher, 124 AD2d 785 (2d Dept 1986). Evidence submitted in inadmissible form on a motion for summary judgment cannot be cured by submitting new evidence in a reply paper. See Jackson-Cutler v. Long, 2 AD3d 590 (2d Dept 2003); Osborne v. Zornberg, 16 AD3d 643 (2d Dept 2005). Cf. Zuckerman v. City of New York, 49 NY2d at 557.

In support of Chou's motion, he submits his own examination before trial (hereinafter "EBT") transcripts dated May 26, 2006 and January 30, 2007, the EBT transcript of Sheila O'Heney who was the president of Owner's Corp. at the time of the alleged incident and the EBT transcript of plaintiff's president. All of the transcripts with the exception of Chou's May 26, 2006 EBT are unsigned. Moreover, Chou fails to state in his moving papers that said transcripts were ever forwarded to the deposed witnesses for their review and that said witnesses failed to sign and return the transcripts within sixty days. See CPLR §3116(a). Chou argues that unsigned and unsworn EBT transcripts may be used by an opposing party as an admission in support of a summary judgment motion and, therefore, all of the EBT transcripts are admissible. Assuming arguendo that Chou is correct, only plaintiff's EBT could be used because plaintiff is the only opposing party. Moreover, Chou attempts to cure said defect in its moving papers by submitting new evidence in its reply papers, which the court cannot consider. See Jackson-Cutler v. Long, 2 AD3d at 590; Osborne v. Zornberg, 16 AD3d at 643. Therefore, the Court can only consider [*3]Chou's May 26, 2006 EBT transcript.

In Chou's sworn EBT, he states that the toddler used the bathroom because "he had to go to the bathroom." When asked if the toddler used the bathroom for any other purpose on the day in question he stated "not to my knowledge." Chou's deposition does not establish that the toddler ever turned on the water in the bathtub or that the child's father accompanied the toddler to the bathroom. It is devoid of any facts to support the granting of summary judgment in his favor.

In support of Owner's Corp.'s motion, it submits the same unsigned depositions as those submitted by Chou along with several unsigned and unsworn affidavits, all of which are in inadmissible form and cannot be considered. See Pina Flik International Corp., 25 AD3d at 773; Santos v. Intown Associates, 17 AD3d at 565; Abrahamsen v. Brockway Glass Co., Inc., 156 AD2d 615 (2d Dept 1989); Jacobs v. Schleicher124 AD2d 785 (2d Dept 1986). Owner's Corp also submits a document entitled "Declaration of Condominium". However, Owner's Corp. fails to lay a proper foundation for the admissibility of said document. See CPLR §4518(a); Education Resources Institute, Inc. v. Piazza17 AD3d 513, 515 (2d Dept 2005); Contreras v. Klein, 17 AD3d 395, 396 (2d Dept 2005); Daliendo v. Johnson, 147 AD2d 312 (2d Dept 1989). The only admissible evidence submitted in support of Owner's Corp.'s motion is Chou's May 26, 2006 deposition which is devoid of any facts to support the granting of summary judgment in its favor.

In view of the foregoing, both defendants have failed to submit evidence in admissible form to establish their prima facie entitlement to judgment as a matter of law. Consequently, defendants' motions for summary judgment are denied.

The foregoing shall constitute the Decision and Order of the Court.



DONALD SCOTT KURTZ

Justice, Supreme Court