| Torres v American Bldg. Maintenance Co. of NY |
| 2008 NY Slip Op 04682 [51 AD3d 905] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Oscar Torres, Respondent, v American BuildingMaintenance Co. of NY et al., Appellants, et al., Defendant. |
—[*1] Block & O'Toole, (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac andDiane K. Toner], of counsel), for respondent.
In a consolidated action to recover damages for personal injuries, the defendants AmericanBuilding Maintenance Co. of NY, 425 T35 FG LLC, and Hiro Real Estate, LLC, appeal from (1)an order of the Supreme Court, Kings County (Schack, J.), dated June 15, 2007, and (2) an orderof the same court dated June 25, 2007, which granted that branch of the plaintiff's motion whichwas for summary judgment on the issue of liability and directed an immediate trial on the issueof damages pursuant to CPLR 3212 (c), and denied their application to have a court stenographertranscribe the oral argument of the plaintiff's motion.
Ordered that the appeal from the order dated June 15, 2007 is dismissed as abandoned; and itis further,
Ordered that the notice of appeal from so much of the order dated June 25, 2007, as deniedthe application of the defendants American Building Maintenance Co. of NY, 425 T35 FG LLC,and Hiro Real Estate, LLC, to have a court stenographer transcribe the oral argument of theplaintiff's motion is deemed to be an application for leave to appeal, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order dated June 25, 2007 is affirmed; and it is further,[*2]
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff established his prima facie entitlement to judgment as a matter of law on hiscause of action alleging negligence by submitting evidence demonstrating that, in violation of theprotocol established for the operation of freight elevators, the defendant Rafael Valdez, anemployee of the defendant American Building Maintenance Co. of NY, operated controls tolower the gate of a freight elevator with his back to the descending gate, and without first lookingto insure that the area was clear, causing it to strike the plaintiff on the head (see Lopez v WS Distrib., Inc., 34AD3d 759, 760-761 [2006]). In opposition, the appellants failed to raise a triable issue offact as to the plaintiff's comparative negligence (see Lopez v WS Distrib., Inc., 34 AD3dat 760-761).
Contrary to the appellants' contention, they have failed to offer an evidentiary basisdemonstrating that further discovery may lead to relevant evidence, as opposed to mere hope andspeculation as to what additional discovery would uncover (see Kimyagarov v Nixon Taxi Corp., 45 AD3d 736 [2007];Lopez v WS Distrib., Inc., 34 AD3d at 760; Rodgers v Yale Univ., 283 AD2d415, 416 [2001]; Martinez v City of New York, 276 AD2d 756, 757 [2000]). Further, theSupreme Court did not improvidently exercise its discretion in ordering an immediate trial on theissue of damages pursuant to CPLR 3212 (c).
There is no merit to the appellants' assertion that a court stenographer should havetranscribed the oral argument of the motion (see Judiciary Law § 295; Feuer vHASC Summer Program, 247 AD2d 429, 430 [1998]; Stevenson v City of Rome,237 AD2d 946 [1997]).
Although the appellants appeal from an order dated June 15, 2007, which granted that branchof the plaintiff's motion which was to consolidate two related actions, they raise no argumentsrelating to the propriety of that order. Accordingly, the appeal from the order dated June 15, 2007is dismissed as abandoned (see M & WRegistry, Inc. v Shah, 46 AD3d 771 [2007]).
The appellants' remaining contentions are without merit. Skelos, J.P., Covello, Eng andLeventhal, JJ., concur.