McDONALD v. (and a third-party action). (2007)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated March 24, 2005, as granted that branch of the motion of the defendant Eric D. Mauss which was for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Eric D. Mauss which was for summary judgment dismissing the complaint insofar as asserted against him is denied.

 In order to establish a prima facie entitlement to judgment as a matter of law, it was incumbent upon the defendant Eric D. Mauss (hereinafter the defendant) to come forward with evidentiary proof, in admissible form, demonstrating the absence of any triable issues of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Ilardi v. Inte-Fac Corp., 290 A.D.2d 490, 736 N.Y.S.2d 401).   The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (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;  Smith v. City of New York, 288 A.D.2d 369, 733 N.Y.S.2d 474;  Sipourene v. County of Nassau, 266 A.D.2d 450, 698 N.Y.S.2d 705).   The deposition transcripts of two nonparty witnesses, submitted by the defendant without an explanation as to why they were unsigned and unsworn, were not in admissible form and should not have been considered by the court (see CPLR 3116;  Santos v. Intown Assoc., 17 A.D.3d 564, 793 N.Y.S.2d 477;  Lalli v. Abe, 234 A.D.2d 346, 650 N.Y.S.2d 313).

 It is evident from the remaining evidence submitted by the defendant that questions of fact exist as to whether the defendant failed to see that which he should have seen through the proper use of his senses (see Rebay v. Tormey, 2 A.D.3d 826, 769 N.Y.S.2d 386;  Ferrara v. Castro, 283 A.D.2d 392, 393, 724 N.Y.S.2d 81;  Zambrano v. Pilhwan Seok, 277 A.D.2d 312, 715 N.Y.S.2d 750;  Smalley v. McCarthy, 254 A.D.2d 478, 679 N.Y.S.2d 406), and whether he made a left turn when it was unsafe to do so (see Gabler v. Marly Bldg. Supply Corp., 27 A.D.3d 519, 813 N.Y.S.2d 120).   The defendant's contention that the plaintiff may have been operating his motorcycle at an excessive rate of speed is speculative at best (see Szczotka v. Adler, 291 A.D.2d 444, 737 N.Y.S.2d 121;  Breslin v. Rudden, 291 A.D.2d 471, 738 N.Y.S.2d 674).

In light of the defendant's failure to establish his prima facie entitlement to judgment as a matter of law, we need not consider any purported deficiency in the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., supra;  Smith v. City of New York, supra;  Sipourene v. County of Nassau, supra ).