H.G., etc., et al., Plaintiffs–Appellants, v. NEW YORK CITY TRANSIT AUTHORITY (2025)

Order, Supreme Court, Bronx County (Kim Adair Wilson, J.), entered on or about June 27, 2024, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing plaintiffs’ fourth, fifth, and thirteenth causes of action, unanimously reversed, on the law, without costs, and the motion denied.

In support of their motion, defendants submitted only 14 pages of excerpts from the transcripts of three witnesses’ deposition testimony.  Although defendants cured the admissibility defect as to those pages by submitting the complete, signed transcripts in reply (see Castano v. Wygand, 122 A.D.3d 476, 477, 997 N.Y.S.2d 36 [1st Dept. 2014]), this evidence was wholly insufficient to set forth a coherent narrative of the facts underlying this personal injury action, let alone establish defendants’ prima facie entitlement to summary judgment dismissing the complaint.  Defendants’ reply papers could not be used to remedy “basic deficiencies in [their] prima facie showing” (Migdol v. City of New York, 291 A.D.2d 201, 737 N.Y.S.2d 78 [1st Dept. 2002]), nor could they rely on plaintiffs’ evidence submitted in opposition to their motion to do so (see Dorset v. 285 Madison Owner LLC, 214 A.D.3d 402, 403, 185 N.Y.S.3d 61 [1st Dept. 2023];  Brown v. Smith, 85 A.D.3d 1648, 1649, 924 N.Y.S.2d 867 [4th Dept. 2011], cited in Li Xian v. Tat Lee Supplies Co., Inc., 170 A.D.3d 538, 539, 94 N.Y.S.3d 438 [1st Dept. 2019]).  Defendants did not submit the pleadings in support of their motion (see CPLR 3212[b]) or incorporate them by reference in this e-filed action (see CPLR 2214[c]).  Accordingly, defendants’ motion should have been denied, without regard to the sufficiency of plaintiffs’ papers in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]).