Houck v Simoes

[*1] Houck v Simoes 2010 NY Slip Op 50924(U) [27 Misc 3d 1227(A)] Decided on May 24, 2010 Supreme Court, Orange County Bartlett, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2010
Supreme Court, Orange County

Deborah J. Houck, Plaintiff,

against

Idalio Simoes, Defendant.



8334/2008

Catherine M. Bartlett, J.

This is an action in personal injury stemming from a trip and fall accident which allegedly occurred on the evening of December 3, 2007 at an apartment building located at 3397 Route 6, Middletown, New York. Plaintiff alleges that on that evening, while she was walking down a poorly lit staircase that was covered by a carpet, the carpet dislodged from the stair tread and caused her to lose her balance and fall down the stairs sustaining an injury.

Defendant contends that plaintiff did not report any problems of lose carpeting on the stairs to him, that he did not know about any lose carpeting on the stairs from any other source and that after his personal inspection of the subject premises the week before the plaintiff assumed occupancy, he never noticed any problems with the stairs or the carpet covering them. Defendant further contends that after the report of plaintiff's accident, he went to the building to inspect the stairs at issue and saw no problem with the carpeting on the stairs even at that time.

In support of defendant's motion, among other things, he submits his own affidavit, the deposition transcripts of both parties, photographs of the step at issue, and an unsigned hospital record containing an alleged statement of the plaintiff as to how her accident allegedly occurred.

As a preliminary matter, the Court will not consider the hospital record submitted by defendant in support of his motion. In the first instance, the hospital record is not in admissible form. The movant has the burden of submitting evidence, in admissible form, to support his motion. Zuckerman v City of New York, 49 NY2d 557, 562 (1980). Unsworn documents are inadmissible evidence and thus a party's reliance thereon in support of a motion for summary judgment is improper. See, Huntington Crescent Country Club v M & M Auto & Marine Upholstery, Inc., 256 AD2d 551, 551 (2nd Dept. 1998). The hospital record is unsigned and there is no evidentiary foundation submitted for it to be considered a business record as an exception to the hearsay rule.

Furthermore, the statement contained in the hospital record is inadmissible as well. In [*2]Williams v Alexander, 309 NY 283, 287 (1955), memoranda made in hospital records, such as a narration of the accident causing the injury, which are not germane to either treatment or diagnosis, are not admissible. See also, Dickson v Queens Long Island Medical Group, 289 AD2d 193 (2nd Dept. 2001); Passino v DeRosa, 199 AD2d 1017, 1017-1018 (4th Dept. 1993); Echeverria v City of New York, 166 AD2d 409, 410 (2nd Dept. 1990); Edelman v City of New York, 81 AD2d 904 (2nd Dept. 1981). The plaintiff's statement as to the modality of her accident is not germane to her treatment and is therefore inadmissible hearsay. Therefore, the hospital record will not be considered and the defendant should not be submitting inadmissible evidence to bolster his case.

Moreover, the deposition transcript of the plaintiff will not be considered as well in support of defendant's application because it is unsigned and there is no proof submitted that it was transmitted 60 days prior to the date of intended use. It is therefore inadmissible evidence which may not be considered on a motion for summary judgment. See, Mc Donald v Mauss, 38 AD3d 727 (2nd Dept. 2007); Pina v Filk International Corp., 25 AD3d 772 (2nd Dept. 2006); Scotto v Marra, 23 AD3d 543 (2nd Dept. 2005)

CPLR §3212(b) states in pertinent part that a motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."

In Andre v Pomeroy, 35 NY2d 361, 364 (1974), the Court of Appeals held that:

[s]ummary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law . . . when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.

According to the Court of Appeals, "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]. Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]." Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985); Ayotte v Gervasio, 81 NY2d 1062, 1063 (1993); Finkelstein v Cornell University Medical College, 269 AD2d 114, 117 (1st Dept. 2000).

A landowner's responsibility is to assure that the conditions on his property are reasonably safe. Basso v Miller, 40 NY2d 233, 241 (1976); Comeau v Wray, 241 AD2d 602, 603 (3rd Dept. 1997); White v Gabrielli, 272 AD2d 469, 469 (2nd Dept. 2000); Rovegno v Church of the Assumption, 268 AD2d 576, 576 (2nd Dept. 2000); Kurshals v Connetquot Central School District, 227 AD2d 593, 593 (2nd Dept. 1996). In Comeau, supra , a deliveryman sued the property owners after falling on stairs leading to a root cellar. Landowners are under a duty to maintain their premises in a reasonably safe condition in view of the circumstances, including the likelihood of injury to others. See, Id. at 603. This duty encompasses warning others of the danger, including obvious ones, or take reasonable steps to protect others from the dangers. See, Id.

As the initial proponent of summary judgment, defendant was obligated to demonstrate [*3]that it lacked actual or constructive notice of the precipitating condition or that it did not create the condition. See generally, Gordon v American Museum of Natural History, 67 NY2d 836 (1986); Gloria v MGM Emerald Enterprises, Inc., 298 AD2d 355 (2nd Dept.,2002). The admissible evidence submitted by defendant demonstrates that he did not either create the condition at issue nor did he know actually or constructively that the carpeting on the steps was defective in any way. According to the defendant's affidavit, he explicitly stated that he did not observe any defects in the carpeting one week prior to the plaintiff's accident and that after being notified of the accident itself, he inspected the premises and did not observe any defects in the carpeting. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it (Negri v. Stop & Shop, 65 NY2d 625, 626, 491 NYS2d 151, 480 NE2d 740; Lewis v. Metropolitan Transp. Auth., 64 NY2d 670, 485 NYS2d 252, 474 NE2d 612, affg. on opn. at 99 AD2d 246, 249, 472 NYS2d 368)." Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). In Pugliese v D'Estrada, 259 AD2d 743 (2nd Dept. 1999). Defendant's affidavit makes out a prima facie case on summary judgment that he lacked notice of the condition at issue and the burden then shifted to the plaintiff to demonstrate to the contrary.

In opposition to this motion, plaintiff submitted her own affidavit and that of a purported expert. The plaintiff's expert also indicated that he observed numerous building code violations concerning the stairs at issue. The defendant objected to the plaintiff's expert on the grounds that he is not qualified to render an opinion on this case and that his opinion is speculative. Moreover, the defendant objected to any reference to building code violations since they were submitted in a "supplemental" bill of particulars after the note of issue was filed.

With respect to the plaintiff's expert, the Court will not consider his affidavit. As the defendant points out, the plaintiff's purported expert has a degree in Nuclear Science, not engineering. Plaintiff indicated that she was submitting her expert's curriculum vitae and according to the purported expert's affidavit, the curriculum vitae was annexed thereto. There was no submission of any curriculum vitae of this individual. As a result, there is no basis upon which to qualify this person as an expert in matters relating to this case. Moreover, even if admissible into evidence the affidavit of plaintiff's expert is replete with conclusory allegations based upon violations not alleged in plaintiff's pleadings or bill of particulars which have not been supplemented or amended to support such allegations. The speculative opinions of an expert based upon an examination of the premises approximately two-years post-accident and photographs which concededly show the condition of the steps days after the plaintiff's alleged accident, and therefore are not a fair and accurate representations of the premises as they existed on the date the accident occurred, are without evidentiary value (see generally, Pirie v Krasinski, 18 AD3d 848, 850 (2nd Dept. 2005); Fitzgerald v Sears, Roebuck & Co., 17 AD3d 522 (2nd Dept. 2005)).

Moreover, the plaintiff's reference to Building Code violations is not considered as well. No party submitted either the bill of particulars or any amended or supplemental bills of particulars (despite defendant's counsel's representation that such documents were annexed as exhibits on reply), but defendant's counsel represented that the "supplemental" bill of particulars as to code violations was served in April, 2010, three months after the note of issue was filed in [*4]this case. The law is clear, amendments to bills of particulars (which is any change to a bill of particulars except continuing injuries and special damages) is permitted once as a matter of right prior to filing a note of issue, and thereafter may only proceed by leave of court. See, CPLR §§ 3042, 3043. There has been no motion for leave to serve an amended bill of particulars and since the code violations were raised for the first time in an amended bill of particulars served post-note of issue, it is deemed a nullity. See, Wittrock v Maimonides Medical Center-Maimonides Hosp., 119 AD2d 748 (2nd Dept. 1986).

The only admissible evidence submitted by the plaintiff in opposition to the motion is her affidavit. Plaintiff does not state that she notified the defendant of any problems concerning the stairs themselves. She provides no evidence herself that the stairs were in a defective condition for any sufficient period during which time the defendant should have discovered any alleged defect. As such, there is no admissible evidence submitted by plaintiff to raise a triable issue of fact concerning the defendant's notice of any alleged defect, and consequently, the defendant's motion for summary judgment is granted.

The foregoing constitutes the decision and order of this Court.

Dated: May 24, 2010E N T E R

Goshen, New York

__________________________

Hon. Catherine M. Bartlett,

A.J.S.C.