Summary
In Weinberg, a personal injury plaintiff testified at a General Municipal Law § 50–h hearing prior to her death, and the court ruled that her testimony was inadmissible hearsay that could not be used to support the allegations of the complaint to oppose a motion for summary judgment by the non-municipal defendants who were not present at the 50–h hearing.
Summary of this case from Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLPOpinion
2003-01877.
Decided on January 12, 2004.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Knipel, J.), dated January 28, 2003, which granted those branches of the separate motions of the defendant City of New York, the defendants Michael Kuryland and Yana Kuryland, and the defendant Sea Gate Association which were for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Ellen B. Fishman and Cheryl Payer of counsel), for respondent City of New York.
Fishman Tynan, Merrick, N.Y. (John Fishman and Maureen Tynan of counsel), for respondents Michael Kuryland and Yana Kuryland
Smith Mazure Director Wilkins Young Yagerman, P.C., New York, N.Y. (Jesse A. Kaplan and Robert P. Siegel of counsel), for respondent Sea Gate Association.
Before: GLORIA GOLDSTEIN and WILLIAM F. MASTRO, JJ.
DECISION ORDER
On January 30, 1994, the plaintiff's decedent fell on a sidewalk abutting property owned by the defendants Michael Kuryland and Yana Kuryland The Kurylands' residence was part of a private community, and the Kurylands belonged to Sea Gate Association (hereinafter the Association), a homeowner's association, which owned the sidewalk. On August 18, 1994, the plaintiff's decedent testified at a hearing conducted pursuant to General Municipal Law § 50-h. After her death, her husband, as executor of her estate, commenced this action against the Kurylands, the Association, and the City of New York. The plaintiff testified at his examination before trial, conducted on June 14, 1999, that he did not actually see the decedent fall and that he did not know what caused the decedent to fall.
The Kurylands and the Association established their entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to identify the cause of the decedent's accident ( see Burnstein v. Mandalay Caterers, 306 A.D.2d 428; White v. Walsh, 289 A.D.2d 228; Gianchetta v. E.B. Mar., 258 A.D.2d 618; Capraro v. Staten Is. Univ. Hosp., 245 A.D.2d 256; see also Bernstein v. City of New York, 69 N.Y.2d 1020). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact. The testimony given by the plaintiff's decedent at the hearing conducted pursuant to General Municipal Law § 50-h cannot be used as against the defendants Michael Kuryland, Yana Kuryland, and the Association, since they were not notified about the hearing and were not present for the testimony given by the decedent ( see CPLR 3117[a][3]; Claypool v. City of New York, 267 A.D.2d 33).
The City also established its entitlement to judgment as a matter of law by demonstrating that it did not own, control, occupy, or make special use of the subject private sidewalk on which the decedent fell ( see Cuce v. Bell Atl. Corp., 299 A.D.2d 387; Rosenbloom v. City of New York, 254 A.D.2d 474).
ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and MASTRO, JJ., concur.