Defendants in personal injury cases commonly file motions for summary judgment. In New York, summary judgment is appropriate only when there is no triable issue of fact. The party seeking summary judgment has the burden of making a prima facie showing of entitlement to summary judgment through evidence in admissible form that shows the absence of material facts at issue. If the moving party fails to make such a showing, the court must deny summary judgment regardless of what is contained in the opposing papers. If the movant does make the prima facie showing, the opposing party must establish that there are material issues of fact. Evidence is viewed in the light most favorable to the opposing party. The Supreme Court, Kings County, recently considered whether unsigned depositions could support a motion for summary judgment in Grant v. Fadhel.
The plaintiff filed suit, alleging common law negligence and violations of Labor Law §§ 200, 240 (1), and 241 (6). He alleged that the defendant had hired him to do electrical work at the defendant’s property. The plaintiff alleged he was severely injured when the floor of a dumbwaiter collapsed and caused him to fall.
The defendant moved for summary judgment. With his motion, he included an affirmation of his counsel and 17 exhibits, including a copy of the transcripts of both the plaintiff’s and the defendant’s depositions. The defendant relied on the depositions and affirmation to establish that he was exempt from Labor Law liability because the property was his residence and a two-family home. Additionally, he argued that he had not hired the plaintiff to install electrical wiring or a circuit breaker. He further argued that he did not have knowledge of a dangerous condition in the dumbwaiter, that he did not instruct the plaintiff to go into the dumbwaiter, and that he did not control how the plaintiff performed the work.
Defense counsel’s affirmation stated that the facts it contained were derived from a review of files and records, but he did not claim any personal knowledge of the allegations in the complaint. The court found, therefore, that the affirmation did not have any probative value in meeting the summary judgment burden of proof.
The court pointed out that the only people with personal knowledge of the facts alleged were the plaintiff and the defendant. Neither of the deposition transcripts submitted in support of the defendant’s motion was either signed or certified. New York Civil Practice Laws and Rules § 3116 (a) requires that a deposition transcript be provided to the deponent for review and signature before being used. It further requires that any changes requested by the deponent are recorded. If the deponent refuses or fails to sign within 60 days, the transcript may be used as though it has been signed. The burden of showing that the transcript was provided to the deponent and that the deponent failed to sign within the 60 days is on the party seeking to use the unsigned deposition.
The court found that the defendant failed to show that the transcript had been provided to the plaintiff and that the plaintiff had failed to sign. The plaintiff’s deposition transcript was therefore not in admissible form and could not be considered in support of the defendant’s motion. Furthermore, the defendant had not signed his own deposition transcript. The court referenced a case in which the Appellate Division Second Department found the unsigned but certified deposition of a party was admissible for the purposes of summary judgment when it was submitted by the deponent. The court distinguished the present case, however, since the defendant’s transcript here was not certified.
The other papers submitted with the defendant’s motion offered no allegations of the factual grounds by someone with personal knowledge. Without the depositions, the defendant failed to make the prima facie showing that he was entitled to summary judgment. The court therefore denied his motion.
The court noted, however, that it would have denied the motion even if the defendant’s testimony had been admissible. The plaintiff’s response argued that the defendant’s motion had simply offered a different version of the facts and therefore may have raised triable issues of credibility, but it did not establish a lack of triable issues of fact. The court agreed with the plaintiff’s analysis.
This case illustrates the requirement that evidence submitted in support of a motion for summary judgment must be in admissible form. The moving party has the burden of proof to show that there are no triable issues of fact and cannot do so by simply presenting a conflicting version of the facts.
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Grant v. Fadhel, March 22, 2016, Supreme Court of the State of New York, Kings County
More Blog Entries:
Gomez v. Stop Shop: Summary Judgment and How it Can Affect Your Personal Injury Claim, March 13, 2012, New York City Injury Lawyer Blog