STOCK v. ThyssenKrupp Elevator Company, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Sylvia STOCK, etc., respondent, v. OTIS ELEVATOR COMPANY, defendant, ThyssenKrupp Elevator Company, appellant.

Decided: June 24, 2008

ROBERT A. SPOLZINO, J.P., FRED T. SANTUCCI, RANDALL T. ENG, and JOHN M. LEVENTHAL, JJ. Babchik & Young, White Plains, N.Y. (Zachary L. Berman and Daniel J. Quart of counsel), for appellant. Silberstein, Awad & Miklos, P.C., Garden City, N.Y. (Daniel Miklos and Paul N. Nadler of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the defendant ThyssenKrupp Elevator Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Pines, J.), dated June 25, 2007, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant ThyssenKrupp Elevator Company for summary judgment dismissing the complaint insofar as asserted against it is granted.

On September 3, 2001, the plaintiff's decedent, Julius Stock (hereinafter the decedent), who was 79 years old, allegedly was caused to fall while he was exiting an elevator at the Gurwin Jewish-Fay J. Linder Residence (hereinafter the Linder Residence), when the elevator door closed on him.   The defendant ThyssenKrupp Elevator Company (hereinafter the defendant) installed and maintained the elevators at the Linder Residence.   The decedent died after this action was commenced, but before he could be deposed.

 The defendant met its burden of establishing its prima facie entitlement to judgment as a matter of law by demonstrating that any determination as to how the accident occurred would be based on speculation (see Lissauer v. Shaarei Halacha, Inc., 37 A.D.3d 427, 829 N.Y.S.2d 229;  Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 814 N.Y.S.2d 178;  Teplitskaya v. 3096 Owners Corp., 289 A.D.2d 477, 735 N.Y.S.2d 585).   The evidence submitted by the plaintiff in opposition was insufficient to raise a triable issue of fact.  “ ‘Although hearsay evidence may be considered in opposition to a motion for summary judgment, it is insufficient to bar summary judgment if it is the only evidence submitted’ ” (Rodriguez v. Sixth President, 4 A.D.3d 406, 771 N.Y.S.2d 368, quoting Arnold v. New York City Hous. Auth., 296 A.D.2d 355, 356, 745 N.Y.S.2d 26).

 The Supreme Court considered the plaintiff's deposition testimony in determining that a question of fact existed as to the cause of the decedent's accident.   However, the plaintiff's testimony was based on speculation and hearsay since she admitted that she did not witness the accident and her testimony was based on information she received from the decedent (see Hochhauser v. Electric Ins. Co., 46 A.D.3d 174, 178, 844 N.Y.S.2d 374;  Rodriguez v. Sixth President, 4 A.D.3d at 406, 771 N.Y.S.2d 368).   The Supreme Court also relied on statements as to the cause of the accident contained in the accident report and the decedent's hospital records, but these items contained inadmissible hearsay and the plaintiff failed to lay the proper foundation for their admission as business records (see CPLR 4518 [a];  Whitfield v. City of New York, 48 A.D.3d 798, 853 N.Y.S.2d 117;  Daliendo v. Johnson, 147 A.D.2d 312, 321, 543 N.Y.S.2d 987;  DiPaolo v. Somma, 111 A.D.2d 899, 900-901, 490 N.Y.S.2d 803).   Further, the affidavit submitted by the plaintiff's elevator consultant in opposition to the motion, which was in part based on his personal observation of the elevator 11 months after the accident, was, among other things, impermissibly speculative and lacking in probative value (see Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525, 533, 569 N.Y.S.2d 337, 571 N.E.2d 645;  McFadden v. Village of Ossining, 48 A.D.3d 761, 854 N.Y.S.2d 141).   Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.

The parties' remaining contentions are without merit.

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