| Martinez v 123-16 Liberty Ave. Realty Corp. |
| 2008 NY Slip Op 00664 [47 AD3d 901] |
| January 29, 2008 |
| Appellate Division, Second Department |
| Jose Martinez et al., Appellants, v 123-16 Liberty AvenueRealty Corp. et al., Respondents. |
—[*1] Daniel Friedman, New York, N.Y., for respondent 123-16 Liberty Avenue Realty Corp. Marshall, Conway, Wright & Bradley, P.C., (Max W. Gershweir and Jennifer B. Ettinger,New York, N.Y. of counsel), for respondent Eun Jea Lee.
In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, etc., aslimited by their brief, from so much of an order of the Supreme Court, Queens County (Kitzes,J.), dated December 18, 2006, as granted that branch of the motion of the defendant Eun Jea Leewhich was for summary judgment dismissing the complaint insofar as asserted against her, andgranted that branch of the cross motion of the defendant 123-16 Liberty Avenue Realty Corp.which was for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and those branches of the motion of the defendant Eun Jea Lee and the cross motion of thedefendant 123-16 Liberty Avenue Realty Corp. which were for summary judgment dismissingthe complaint insofar as asserted against them are denied.
The motion for summary judgment submitted by the defendant Eun Jea Lee was supportedby transcripts of deposition testimony of the plaintiff Jose Martinez and Bong Kwan Chang, theprincipal of the defendant 123-16 Liberty Avenue Realty Corp. (hereinafter Liberty), and by herown deposition testimony. None of the deposition transcripts was signed or attested to by therespective deponents. The motion also was supported by an affidavit of Lee's husband, JoonYoung Lee. That [*2]affidavit had been translated from Korean toEnglish by Mr. Lee's daughter, Hannah Lee. The affidavit was not accompanied by the requisitetranslator's attestation (see CPLR 2101 [b]). The cross motion for summary judgmentsubmitted by Liberty was supported by an affirmation of counsel, which referenced thedeposition testimony submitted by the defendant Lee.
To establish prima facie entitlement to judgment as a matter of law, a movant for summaryjudgment must come forward with evidentiary proof, in admissible form, demonstrating theabsence of any triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986];Zuckerman v City of New York, 49 NY2d 557 [1980]). The failure to make suchshowing requires the denial of the motion, regardless of the sufficiency of the opposing papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; McDonald v Mauss, 38 AD3d 727[2007]).
The defendants failed to show that the unsigned deposition transcripts of the variouswitnesses, submitted in support of the defendant Lee's motion and relied upon by Liberty in itscross motion, previously were forwarded to the relevant witnesses for their review pursuant toCPLR 3116 (a). The transcripts did not constitute admissible evidence. The translated affidavitthat lacked the translator's attestation also did not constitute admissible evidence (seeCPLR 2101 [b]). Accordingly, the defendants failed to establish their entitlement to summaryjudgment (see McDonald v Mauss,38 AD3d 727 [2007]; Pina v FlikIntl. Corp., 25 AD3d 772 [2006]; Scotto v Marra, 23 AD3d 543 [2005]; Santos v Intown Assoc., 17 AD3d564 [2005]). Crane, J.P., Rivera, Angiolillo and Dickerson, JJ., concur.