MARQUEZ v. CITY OF NEW YORK (2008)

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered July 30, 2007, which denied defendants' motion for summary judgment dismissing this personal injury action based on exposure to secondhand smoke and referred their alternative request for a Frye hearing to the trial court, unanimously affirmed, without costs.

Defendants did not meet their initial burden to establish their prima facie entitlement to summary judgment since they failed to offer admissible proof that refuted plaintiff's claim of a causal connection between his bladder cancer and the secondhand smoke (SHS) he allegedly inhaled while incarcerated in City jails between August 1998 and January 2001.   In support of their argument that the scientific community has not accepted the proposition that a causal connection exists between bladder cancer and SHS, defendants submitted an affirmation by counsel and an expert's unsworn statement (Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];  Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76 [1991] ).