Hamilton v. City of New York

• Decision Date: 01 June 1999
• Citation: 262 AD2d 283,691 N.Y.S.2d 108
• Parties: Ernestine HAMILTON, plaintiff, v. CITY OF NEW YORK, defendant, L.K. Comstock & Co., Inc., appellant, New York Paving, Inc., respondent.
• Court: New York Supreme Court — Appellate Division

Page 108

691 N.Y.S.2d 108

Ernestine HAMILTON, plaintiff, v. CITY OF NEW YORK, defendant, L.K. Comstock & Co., Inc., appellant, New York Paving, Inc., respondent.

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

June 1, 1999.

Cerussi & Spring, White Plains, N.Y. (Peter Riggs and Matthew J. Wojkowiak of counsel), for appellant.

Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola, N.Y. (Elizabeth Gelfand Kastner of cousnel), for respondent.

CORNELIUS J. O'BRIEN, J.P., GLORIA GOLDSTEIN, DANIEL F. LUCIANO and ROBERT W. SCHMIDT, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, the defendant L.K. Comstock & Co., Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated April 20, 1998, as granted that branch of the motion of the defendant New York Paving, Inc., which was for summary judgment dismissing the cross claim asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the cross claim by L.K. Comstock & Co., Inc., against New York Paving, Inc., is reinstated.

The defendant New York Paving, Inc. (hereinafter Paving) was not entitled to summary judgment dismissing the cross claim asserted against it by the appellant L.K. Comstock & Co., Inc. (hereinafter Comstock). The papers submitted in support of the motion failed to include copies of all of the pleadings as required by statute (see, CPLR 3212[b]; Lawlor v. County of Nassau, 166 A.D.2d 692, 561 N.Y.S.2d 644; Somers Realty Corp. v. Big "V" Props., 149 A.D.2d 581, 540 N.Y.S.2d 677; Freeman v. Easy Glider Roller Rink, 114 A.D.2d 436, 494 N.Y.S.2d 351). Moreover, Paving relied upon a hearsay document containing a notation written by an unknown person which purported to state the date on which Paving commenced work at the location of the accident (see, Albrecht v. Area Bus Corp., 249 A.D.2d 253, 670 N.Y.S.2d 873; JaJoute v. New York City Health and Hosps. Corp., 242 A.D.2d 674, 662 N.Y.S.2d 786; Ginsberg v. North Shore Hosp., 213 A.D.2d 592, 624 N.Y.S.2d 257; Rush v. Sears, Roebuck & Co., 92 A.D.2d 1072, 461 N.Y.S.2d 559). Paving failed to establish its prima facie entitlement to judgment as a matter of law, and we therefore need not reach the question of the sufficiency of the evidence presented in opposition to the motion (see, CPLR 4518[a]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476...