MELENDEZ v. PERLBERGER (2023)

Order, Supreme Court, New York County (James G. Clynes, J.), entered August 19, 2022, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Awilda Melendez commenced this action alleging that she sustained injuries when she was struck by defendants’ vehicle near the intersection of 125th Street and Park Avenue in Manhattan.  After the commencement of the action, Melendez passed away from unrelated causes, and her sister was substituted as the plaintiff.

Defendants established prima facie absence of negligence on their part by submitting defendant Carol Perlberger's deposition testimony that she was driving slowly in traffic on 125th street when she suddenly heard a “thump.” After the accident, Perlberger discovered that the side mirror on the passenger side of her vehicle was shattered, which is consistent with Melendez coming into contact with the side of her vehicle.

In opposition, plaintiff failed to submit evidentiary proof in admissible form so as to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]).  Although evidence excludable under CPLR 4519 “may be used to defeat summary judgment if it is not the only evidence presented” (Matter of Ingberman [Colon], 194 A.D.3d 410, 411, 149 N.Y.S.3d 6 [1st Dept. 2021]), plaintiff did not proffer any other admissible evidence in opposition to defendants’ motion.  Contrary to plaintiff's contention, defendants’ submission of the transcript of plaintiff's testimony for the limited purpose of arguing for the applicability of CPLR 4519 could not, logically, constitute a waiver of their objection to the testimony under the statute.