Delishi v. Prop. Owner (usa) Llc

• Decision Date: 08 March 2011
• Citation: 920 N.Y.S.2d 597,31 Misc.3d 661,2011 N.Y. Slip Op. 21076
• Parties: Haxhi DELISHI, Plaintiff,v.PROPERTY OWNER (USA) LLC, HSBC North America, Inc., Jones Lang LaSalle Services, Inc., Jordan Daniels Electrical Contractors Inc., D.P. Facilities, Inc., Stateside Contracting Co., and Mechanical Construction Group, Inc., Defendants.
• Court: New York Supreme Court

31 Misc.3d 661

920 N.Y.S.2d 597

2011 N.Y. Slip Op. 21076

Haxhi DELISHI, Plaintiff,

v.PROPERTY OWNER (USA) LLC, HSBC North America, Inc., Jones Lang LaSalle Services, Inc., Jordan Daniels Electrical Contractors Inc., D.P. Facilities, Inc., Stateside Contracting Co., and Mechanical Construction Group, Inc., Defendants.

Supreme Court, Kings County, New York.

March 8, 2011.

William Ricigliano, Esq., for Plaintiff.Edward V. Schwendemann, Esq. of Goldberg Segalla LLP, for Defendants Property Owner (USA) LLC and HSBC North America, Inc.Barry N. Greenberg, Esq. of The Law Offices of Edward Garfinkel, for Defendant/third-party plaintiff Jones Lang LaSalle Services, Inc.Robert P. Siegel, Esq. of Smith Mazure Director Wilkins Young & Yagerman, P.C., for Defendant Jordan Daniels Electrical Contractors Inc.Joseph W. Sands, Esq. of White & McSpedon, P.C., for Defendant D.P. Facilities, Inc.John P. Bonanno, Esq. and Peter J. Cipriano, Esq. of Weiner, Millo, Morgan & Bonanno, LLC, for Defendant Stateside Contracting Co.Alan L. Korzen, Esq. of Bonner, Kiernan Trebach & Crociata, LLP, for Third-party defendant Collins Building Services, Inc.JACK M. BATTAGLIA, J.

Recitation in accordance with CPLR 2219(a) of the papers submitted on the motion of defendant Stateside Contracting Co., Inc., i/s/h/a Stateside Contracting Co. for an order, pursuant to CPLR 3212, dismissing Plaintiff's Verified Complaint and cross-claims asserted against it (no. 8); the motion of third-party defendant Collins Building Services, Inc. for an order, pursuant to CPLR 3212, dismissing the Third–Party Complaint and cross-claims asserted against it (no. 9); the motion of defendant Jordan Daniels Electrical Contractors, Inc. for an order, pursuant to CPLR 3212, dismissing Plaintiff's Verified Complaint and cross-claims asserted against it (no. 10); the motion of defendants Property Owner (USA) LLC i/s/h/a Property Owner (USA), LLC and HSBC North America, Inc. for an order, pursuant to CPLR 3212, granting judgment on their cross-claims for indemnity, contribution, and breach of contract against defendant D.P. Facilities, Inc. (no. 11); and on the cross-motion of defendant/third-party plaintiff Jones Lang LaSalle Services, Inc. for an order, pursuant to CPLR 3212, dismissing Plaintiff's Verified Complaint and cross-claims asserted against it (no. 12):

-Notice of Motion for Summary Judgment

Attorney Affirmation

Memorandum of Law

Exhibits A–Q

-Notice of Motion for Summary Judgment

Affirmation in Support of Collins Building Services, Inc. Motion for Summary Judgment

Exhibits A–S

Memorandum of Law in Support of Third Party Defendant Collins Building Services, Inc. Motion for Summary Judgment

-Notice of Motion

Affirmation in Support

Exhibits A–Z

-Notice of Motion for Summary Judgment

Affirmation in Support of Motion for Summary Judgment

Exhibits A–V

-Notice of Cross–Motion for Summary Judgment and in Opposition to the Motion of Third–Party Defendant

Exhibits A–P

-Affirmation in Opposition to Defendant Jordan Daniels, [ sic ] Electrical Contractors Inc., Stateside Contracting Co., Inc. and Jones Lang LaSalle Services, Inc.'s Motions for Summary Judgment

Exhibits A–S

Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment

-Affirmation in Opposition to Motion for Summary Judgment by Defendant Stateside Contracting Co., Inc.

-Affirmation in Opposition to Defendant Jordan Daniels Electrical Contractors, Inc.'s Motion for Summary Judgment

Exhibit A

-Affirmation in Opposition to Motion for Summary Judgment by Defendant HSBC North America, Inc.

-Reply Affirmation

Reply Memorandum of Law

-Reply Affirmation in Support of Collins Building Services, Inc.'s Motion for Summary Judgment

-Reply Affirmation

-Reply Affirmation

-Reply Affirmation

-Reply Affirmation

Plaintiff Haxhi Delishi alleges that, on November 14, 2005, while working for third-party defendant Collins Building Services, Inc. (“Collins”), he sustained injury when he slipped and fell at a construction site on the 10th floor of the building at One West 39th Street, New York County. His Verified Complaint alleges that each named Defendant was negligent in causing the injury-producing condition or allowing it to exist, or in failing to warn him about it.

Five of the named Defendants have moved for an order, pursuant to CPLR 3212, dismissing the Verified Complaint and cross-claims against them—Stateside Contracting Co., Inc. i/s/h/a Stateside Contracting Co. (“Stateside”); Jordan Daniels Electrical Contractors, Inc. (“Jordan Daniels”); Property Owner (USA), LLC and HSBC North America, Inc. (collectively “HSBC”); and Jones Lang LaSalle Services, Inc. (“Jones Lang”). Third-party defendant Collins has moved for an order, pursuant to CPLR 3212, dismissing the Third–Party Complaint of defendant/third-party plaintiff Jones Lang.

Except for the Jones Lang motion, all of the motions are timely, having been served within sixty days after Plaintiff filed his Note of Issue on October 6, 2010, as required by the Uniform Rules of Kings County Supreme Court ( see Kings County Uniform Rules, Part C, ¶ 6; Lennard v. Khan, 69 A.D.3d 812, 814, 893 N.Y.S.2d 572 [2d Dept. 2010]; Kennedy v. Bae, 51 A.D.3d 980, 981, 857 N.Y.S.2d 509 [2d Dept. 2008] [predecessor Rule 13 of the Uniform Civil Term Rules of the Supreme Court, Kings County].) Jones Lang's motion was not served until December 22, 2010, and is not based upon “nearly identical” grounds of any of the timely motions ( see Lennard v. Khan, 69 A.D.3d at 814, 893 N.Y.S.2d 572.) Since Jones Lang does not acknowledge the untimeliness of its motion, it does not attempt to show “good cause” for its being late, which in any event would be belied by the timeliness of co-Defendants' motions.

The motion of defendant/third-party plaintiff Jones Lang LaSalle Services, Inc. is, therefore, denied. To the extent, however, that Jones Lang's motion papers also serve as opposition to the motion of third-party defendant Collins, and to the extent that the opposition is supported by evidence in admissible form, it will be considered for that purpose.

Deposition Transcripts

The papers filed by the parties on these motions measure, literally, three feet high, comprised primarily of duplicate copies of various deposition transcripts. The Court could not fault the parties for completeness if the transcripts were rendered admissible as evidence, but, as will appear, many were not.

A total of 49 exhibits are comprised of deposition transcripts. Seventeen of the transcripts are not signed by either the deponent or the court reporter, and none of them is shown to have been submitted to the deponent for review and signature pursuant to CPLR 3116(a). These seventeen transcripts are clearly inadmissible as evidence in support of summary judgment. ( See Moffett v. Gerardi, 75 A.D.3d 496, 498, 904 N.Y.S.2d 757 [2d Dept. 2010]; Marmer v. IF USA Express, Inc., 73 A.D.3d 868, 869, 899 N.Y.S.2d 884 [2d Dept. 2010]; Myers v. Polytechnic Preparatory Country Day School, 50 A.D.3d 868, 869, 855 N.Y.S.2d 650 [2d Dept. 2008]; Martinez v. 123–16 Liberty Ave. Realty Corp., 47 A.D.3d 901, 902, 850 N.Y.S.2d 201 [2d Dept. 2008]; McDonald v. Mauss, 38 A.D.3d 727, 728, 832 N.Y.S.2d 291 [2d Dept. 2007]; Scotto v. Marra, 23 A.D.3d 543, 544, 806 N.Y.S.2d 603 [2d Dept. 2005]; Santos v. Intown Assoc., 17 A.D.3d 564, 564, 793 N.Y.S.2d 477 [2d Dept. 2005]; Pina v. Flik Intl. Corp., 25 A.D.3d 772, 773, 808 N.Y.S.2d 752 [2d Dept. 2006]; Lalli v. Abe, 234 A.D.2d 346, 347, 650 N.Y.S.2d 313 [2d Dept. 1996].) Nor may any of these transcripts be considered in opposition in the absence of an explanation for their not being in admissible form. ( See Moffett v. Gerardi, 75 A.D.3d at 498–99, 904 N.Y.S.2d 757.)

Nonetheless, there is limited authority that where the transcript is submitted by the party deponent, it is “adopted as accurate.” ( See Ashif v. Won Ok Lee, 57 A.D.3d 700, 700, 868 N.Y.S.2d 906 [2d Dept. 2008].) But unless the requirement for evidence in admissible form is to be abandoned entirely, the transcript must at least contain the reporter's certification that the testimony was sworn.

There is also limited authority in the First and Fourth Departments that “[a]n unsigned but certified deposition transcript of a party can be used by the opposing party as an admission.” ( See Morchik v. Trinity School, 257 A.D.2d 534, 536, 684 N.Y.S.2d 534 [1st Dept. 1999]; see also Garris v. City of New York, 65 A.D.3d 953, 953, 885 N.Y.S.2d 491 [1st Dept. 2009]; R.M. Newell Co. v. Rice, 236 A.D.2d 843, 844, 653 N.Y.S.2d 1004 [4th Dept. 1997]; see also Arnold v. Schmittan, 18 Misc.3d 135(A), 2008 N.Y. Slip Op. 50184(U), *2, 2008 WL 269097 [App. Term, 2d Dept. 2008].) There is logic to this position, but it is apparent from the authorities cited above that it has not commended itself to the Second Department, and this Court is bound to follow the Second Department ( see Mountain View Coach Lines v. Storms, 102 A.D.2d 663, 664, 476 N.Y.S.2d 918 [2d Dept. 1984]; see also People v. Turner, 5 N.Y.3d 476, 482, 806 N.Y.S.2d 154, 840 N.E.2d 123 [2005].)

Where, as here, however, several parties have “adopted as accurate” the deposition transcripts of their own witnesses ( see Ashif v. Won Ok Lee, 57 A.D.3d at 700, 868 N.Y.S.2d 906), it may not make much practical difference whether or not an opposing party could rely on the transcripts if they were not submitted by the party for whom the deponent testified. On a motion for summary judgment, the court is entitled to “search the record ... with respect to a cause of action or issue that is the subject of the motions before the court” ( see East End Cement & Stone, Inc. v. Carnevale, 73 A.D.3d 974, 976, 903 N.Y.S.2d 420 [2d Dept. 2010]

[quoting Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429–30, 654 N.Y.S.2d 335, 676 N.E.2d 1178 [1996]

.) Once a party has “adopted as accurate” sworn testimony of its own witness, there is no question as to fair notice or an opportunity...