AMEZQUITA v. RCPI LANDMARK PROPERTIES LLC (2021)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about May 12, 2020, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Defendants failed to establish prima facie that plaintiff was the sole proximate cause of the injuries she sustained when the manual freight elevator that she was operating suddenly stopped moving (see generally Powers v. 31 E 31 LLC, 123 A.D.3d 421, 423, 998 N.Y.S.2d 23 [1st Dept. 2014]).  Defendants submitted an affidavit by an expert professional engineer who opined – based on his review of the surveillance footage of plaintiff's accident and still images purportedly extracted therefrom – that plaintiff failed to fully close the elevator car's scissor gate, which then opened while the elevator car was in flight, triggering the elevator's sudden stop.  However, they failed to submit the video footage on which their expert relied.  Instead, in this electronically filed case, defendants submitted a sheet of paper that read, “Copy of the video to be provided upon the Court's request.”  The New York County e-filing protocol required parties who wished to submit exhibits “that cannot practically be e-filed,” such as videos, to file NYSCEF Form EF 21 and consult with the County Clerk about how best to submit such exhibits (see Sup Ct, Civ Branch, N.Y. County, Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases § B[10] [rev Aug. 15, 2019], available at https://perma.cc/8LUK–8CBK [cached Apr. 5, 2021];  see also Uniform Civil Rules for the Supreme Court and the County Court [22 NYCRR] §§ 202.5–b[d][7];  202.5–bb[a][1]).  Because defendants failed to comply with these procedures, the video never became part of the record and thus cannot be reviewed by this Court.

Absent the video, the record evidence does not establish that plaintiff was the sole proximate cause of her injuries.  The still images annexed to defendants' expert's affidavit do not establish prima facie that, as the expert opined, the scissor gate did not fully close because of suboptimal effort on plaintiff's part, as opposed to some defect in the scissor gate or the elevator that prevented the scissor gate from either fully closing or staying fully closed.  Indeed, on its face, the expert's affidavit raises issues of fact as to whether the elevator should not have been able to run if plaintiff did not fully close the scissor gate before her accident (see generally Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002] [“Where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, ․ the opinion should be given no probative force”];  Hernandez v. Pace El. Inc., 69 A.D.3d 493, 495, 894 N.Y.S.2d 382 [1st Dept. 2010]).

Accordingly, defendants' motion should be denied without regard to the sufficiency of plaintiff's papers in opposition (see Pullman v. Silverman, 28 N.Y.3d 1060, 1062, 43 N.Y.S.3d 793, 66 N.E.3d 663 [2016]).