Frees v. Frank & Walter Eberhart L.P. No. 1

• Decision Date: 11 March 2010
• Citation: 896 N.Y.S.2d 71,2010 N.Y. Slip Op. 01898,71 A.D.3d 491
• Parties: Cynthia FREES, Plaintiff–Appellant,v.FRANK & WALTER EBERHART L.P. NO. 1, et al., Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

71 A.D.3d 491

896 N.Y.S.2d 71

2010 N.Y. Slip Op. 01898

Cynthia FREES, Plaintiff–Appellant,

v.FRANK & WALTER EBERHART L.P. NO. 1, et al., Defendants–Respondents.

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

March 11, 2010.

Law Office of Erik L. Gray, New York (Erik L. Gray of counsel), for appellant.Fiedelman & McGaw, Jericho (Ross P. Masler of counsel), for respondents.MAZZARELLI, J.P., SAXE, MOSKOWITZ, ACOSTA, RENWICK, JJ.

Order, Supreme Court, New York County (Martin Shulman, J.), entered February 4, 2009, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated.

Defendants failed to establish their prima facie entitlement to judgment as a matter of law in this action for personal injuries sustained when cabinets in plaintiff's kitchen fell from the wall and struck plaintiff. Although the deposition testimony offered on the motion demonstrated that defendants had no notice of the alleged dangerous condition, defendants' witness had no personal knowledge of how the subject cabinets were actually installed. Thus, since defendants' “witness was unaware of whether the installation ... was satisfactory, and [defendants] failed to produce a witness who would have had direct knowledge of such facts, [defendants] failed to establish a prima facie case that [they] did not create the defective condition” ( Cuevas v. City of New York, 32 A.D.3d 372, 373, 821 N.Y.S.2d 37 [2006] ). Furthermore, to the extent that the motion court may have considered the report from defendants' expert in deciding the motion, this was error. Indeed, the report was unsworn, was not made in the regular course of business, and thus was inadmissible and could not be considered in support of the motion ( see Bendik v. Dybowski, 227 A.D.2d 228, 229, 642 N.Y.S.2d 284 [1996] ).

Defendants' failure to meet their initial burden of establishing a prima facie case renders it unnecessary to consider plaintiff's opposition to the motion ( see e.g. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).