Johnson v Chacon-Adames

[*1] Johnson v Chacon-Adames 2007 NY Slip Op 52146(U) [17 Misc 3d 1125(A)] Decided on June 6, 2007 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2007
Supreme Court, Bronx County

Terrence Johnson, Plaintiff

against

Rafael Chacon-Adames and Hermenegilda Arias, Defendants



8484/2003



For Plaintiff

Edward Sivin Esq.

Sivin & Miller, L.L.P.

170 Broadway, New York, NY 10038

For Defendants

Andrew Keats Esq.

Baker, McAvoy, Morrissey & Moskovits, P.C.

333 West 33rd Street, New York, NY 10001

Lucy Billings, J.

Plaintiff moves to reargue defendants' motion for summary judgment dismissing plaintiff's complaint pursuant to C.P.L.R. § 3212(b), which this court granted in an order dated June 16, 2006. C.P.L.R. § 2221(d). For the reasons explained below, the court adheres to its prior decision and denies plaintiff's motion.

A motion for reargument must be based on facts or law that a prior decision overlooked or misapprehended. C.P.L.R. § 2221(d)(2); Rivera v. Benaroti, 29 AD3d 340, 341 (1st Dep't 2006); Jones v. Budhwa, 23 AD3d 154 (1st Dep't 2005); C.R. v. Pleasantville Cottage School, 302 AD2d 259, 260 (1st Dep't 2003); Johnson v. New York City Commn. on Human Rights, 270 AD2d 186, 187 (1st Dep't 2000). Reargument is not a vehicle for arguments not raised in plaintiff's original motion. Pryor v. Commonwealth Land Tit. Ins. Co., 17 AD3d 434, 436 (2d Dep't 2005); Dinstber v. Fludd, 2 AD3d 670 (2d Dep't 2003); Frisenda v. X Large Enters., 280 AD2d 514, 515 (2d Dep't 2001). See Rubinstein v. Goldman, 225 AD2d 328 (1st Dep't 1996); Mariani v. Dyer, 193 AD2d 456, 458 (1st Dep't 1993); William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22, 27 (1st Dep't 1992).

Plaintiff now claims that the hearsay or otherwise inadmissible evidence he presented to oppose to defendants' motion for summary judgment was sufficient to defeat the motion. Although plaintiff contends he was not required to incur the time and expense to secure the evidence in admissible form until trial, in opposing defendants' summary judgment motion, plaintiff was required to lay bare his proof. Hyman v. Queens County Bancorp, Inc., 3 NY3d 743, 744 (2004); Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 315 (2004); Darby & Darby [*2]v. VSI Intl., 95 NY2d 308, 315 (2000); Judith M. v. Sisters of Charity Hosp., 93 NY2d 932, 933-34 (1999). While plaintiff would have been entitled to rely on inadmissible evidence defendants presented in support of their motion, Thompson v. Abbasi, 15 AD3d 95, 97 (1st Dep't 2005); Brown v. Achy, 9 AD3d 30, 32 (1st Dep't 2004); Toledo v. A.P.O.W. Auto Repair/Towing, 307 AD2d 233, 234 (1st Dep't 2003), defendants did not rely on such evidence here.

In addition, while hearsay may be used to oppose a summary judgment motion, it will not defeat summary judgment if the hearsay is the only evidence in opposition. Candela v. City of New York, 8 AD3d 45, 47 (1st Dep't 2004); Chianese v. Meier, 246 AD2d 328, 330 (1st Dep't 1998); Koren v. Weihs, 201 AD2d 268, 269 (1st Dep't 1994). Here, plaintiff presented no admissible evidence of his treatment shortly after the collision that injured him and has not shown that his inadmissible medical records fall under any exception to the rule against hearsay. Candela v. City of New York, 8 AD3d at 47.

The court also may consider inadmissible evidence if plaintiff presents an acceptable excuse for failing to produce the evidence in admissible form. Schwaller v. Squire Sanders & Dempsey, 249 AD2d 195, 197 (1st Dep't 1998); Chianese v. Meier, 246 AD2d at 329; Balsam v. Delma Eng'g Corp., 203 AD2d 203 (1st Dep't 1994). Plaintiff, in insisting he will present the testimony of physicians who treated him immediately after he was injured and his contemporaneous hospital records in admissible form at trial, admits this evidence is obtainable. Aff. of Edward Sivin ¶ 7. Even had plaintiff furnished an explanation for not producing the evidence in admissible form, he omitted the essential support for such an explanation: his treating medical providers' identities, the substance of their expected testimony, and how the witnesses acquired relevant knowledge. Egleston v. Kalamarides, 58 NY2d 682, 684 (1982); Phillips v. Kantor & Co., 31 NY2d 307, 312 (1972); Maniscalco v. Liro Eng'g Constr. Mgt., 305 AD2d 378, 380 (2d Dep't 2003); Gizzi v. Hall, 300 AD2d 879, 881 (3d Dep't 2002). See Snyder v. Sony Music Entertainment, 252 AD2d 294, 298-99 (1st Dep't 1999); Siegel v. Wank, 183 AD2d 158, 161 (3d Dep't 1992).

Consequently, the court denies plaintiff reargument of defendants' prior motion for summary judgment dismissing the complaint and adheres to the decision dated June 16, 2006, granting defendants' motion. This decision constitutes the court's order.

DATED: June 6, 2007

_____________________________

Lucy Billings, J.S.C.