| Whitfield v City of New York |
| 2008 NY Slip Op 01746 [48 AD3d 798] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Michael Whitfield, Respondent, v City of New York et al.,Respondents, and Vales Construction Corp., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo andElizabeth I. Freedman of counsel), for defendants-respondents City of New York and New YorkCity Department of Design and Construction. Cullen and Dykman, LLP, Brooklyn, N.Y. (Joseph Miller of counsel), fordefendant-respondent New York City Housing Authority. Malapero & Prisco, LLP, New York, N.Y. (Andrew L. Klauber of counsel), fordefendant-respondent De Micco Brothers, Inc.
In an action to recover damages for personal injuries, the defendant Vales Construction Corp.appeals from an order of the Supreme Court, Kings County (Battaglia, J.), dated July 27, 2007,which denied, with leave to renew, its motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against it.
Ordered that the order is affirmed, with one bill of costs payable to thedefendants-respondents appearing separately and filing separate briefs.
The plaintiff commenced this action against, among others, the defendant Vales [*2]Construction Corp. (hereinafter Vales) to recover damagesallegedly sustained when he tripped and fell on an allegedly dangerous and defective sidewalknear the Bushwick Housing Complex in Brooklyn. The plaintiff alleged that Vales, inter alia,maintained and repaired the sidewalk. Vales moved for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it. The Supreme Court denied themotion with leave to renew. We affirm.
In support of its motion, Vales relied, in the main, on information contained in "PreliminaryInspection Reports," which it offered as business records. However, Vales failed to demonstratethe admissibility of the reports under the business records exception to the hearsay rule (seeCPLR 4518 [a]; Matter of Leon RR, 48 NY2d 117 [1979]; Johnson v Lutz,253 NY 124 [1930]; Hochhauser v Electric Ins. Co., 46 AD3d 174 [2007]; VermontCommr. of Banking & Ins. v Welbilt Corp., 133 AD2d 396 [1987]). In any event, even if thereports were admissible under that exception, Vales failed to demonstrate a prima facieentitlement to judgment as a matter of law. Thus, the motion was properly denied regardless ofthe sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851 [1985]).
Vales' remaining contentions are without merit. Ritter, J.P., Florio, Carni and Leventhal, JJ.,concur. [See 16 Misc 3d 1115(A), 2007 NY Slip Op 51433(U).]