PINA v. LLP

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

Merida PINA, plaintiff-respondent, v. FLIK INTERNATIONAL CORP., appellant-respondent, PricewaterhouseCoopers, LLP, respondent-appellant.

Decided: January 31, 2006

ROBERT W. SCHMIDT, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, and JOSEPH COVELLO, JJ. Gordon & Silber, P.C., New York, N.Y. (Jon D. Lichtenstein of counsel), for appellant-respondent. Perez, Furey & Varvaro, Uniondale, N.Y. (Joseph Varvaro of counsel), for respondent-appellant. William D. Fireman, P.C., New York, N.Y., for plaintiff-respondent.

In an action to recover damages for personal injuries, the defendants Flik International Corp., and PricewaterhouseCoopers, LLP, separately appeal from an order of the Supreme Court, Queens County (Satterfield, J.), dated January 3, 2005, which denied their respective motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs.

The plaintiff allegedly was injured when she slipped and fell on a liquid substance leaking from garbage bags near a freight elevator on the 29th floor of a building.   She commenced this action against the defendant PricewaterhouseCoopers, LLP (hereinafter Pricewaterhouse), which leased the office space on the 29th floor, and the defendant Flik International Corp. (hereinafter Flik), which provided food catering services to the floor, alleging that Flik created the dangerous condition and Pricewaterhouse negligently permitted the condition to exist.

Both defendants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the grounds, inter alia, that they did not owe the plaintiff a duty of care and did not create or have actual or constructive notice of the dangerous condition that allegedly caused the plaintiff's injuries.   The Supreme Court denied both motions.   We affirm.

The Supreme Court properly denied the defendants' motions for summary judgment since they failed to submit sufficient evidence in admissible form to establish their entitlement to judgment as a matter of law (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).   The defendants failed to show that the unsigned deposition transcripts of various witnesses they submitted in support of their motions had previously been forwarded to the relevant witnesses for their review pursuant to CPLR 3116(a).   Hence, contrary to the defendants' contention, they were not admissible (see Lalli v. Abe, 234 A.D.2d 346, 650 N.Y.S.2d 313;  Palumbo v. Innovative Communications Concepts, 175 Misc.2d 156, 668 N.Y.S.2d 433, affd. 251 A.D.2d 246, 675 N.Y.S.2d 37;  Connors, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3116:1).

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