| Garcia v Lenox Hill Florist III, Inc. |
| 2014 NY Slip Op 06171 [120 AD3d 1296] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Jimmy Garcia et al., Respondents, v Lenox HillFlorist III, Inc., et al., Appellants, et al., Defendants. |
Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y.(Anton Piotroski of counsel), for appellants.
Skip Alan LeBlang, New York, N.Y., for respondents.
In an action to recover damages for personal injuries, etc., the defendants Lenox HillFlorist III, Inc., and George Seretis appeal (1), as limited by their brief, from so much ofan order of the Supreme Court, Queens County (McDonald, J.), dated September 20,2013, as granted that branch of the plaintiffs' motion which was for summary judgmenton the issue of liability insofar as asserted against them, and (2) from a judgment of thesame court entered October 15, 2013, which, upon the order, is in favor of the plaintiffsand against them on the issue of liability.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment.
The plaintiff Jimmy Garcia (hereinafter the injured plaintiff) allegedly was injuredwhen he was struck by a vehicle owned by the defendant Lenox Florist III, Inc., andoperated by the defendant George Seretis (hereinafter together the Florist defendants).The plaintiffs established their prima facie entitlement to judgment as a matter of law onthe issue of liability insofar as asserted against the Florist defendants by presenting proofthat the injured plaintiff was walking within an unmarked crosswalk and that he lookedfor approaching traffic before he began to cross (see Vehicle and Traffic Law§ 1152 [a]; Hamilton v King Tung Kong, 93 AD3d 821 [2012]; Roman v A1 Limousine, Inc.,76 AD3d 552 [2010]; Rosenblatt v Venizelos, 49 AD3d 519 [2008]; Abramov v Miral Corp., 24AD3d 397 [2005]).
In opposition, the Florist defendants failed to raise a triable issue of fact. A transcriptof an alleged telephone conversation that a nonparty witness had with the defendants'insurance [*2]personnel, which is not authenticated,certified, or sworn, was inadmissible and insufficient to raise a triable issue of fact (see Moore v 3 Phase EquestrianCtr., Inc., 83 AD3d 677 [2011]; Dan's Supreme Supermarkets v RedmontRealty Co., 261 AD2d 353 [1999]). Additionally, Seretis's unsupported speculationin his affidavit that the injured plaintiff was comparatively negligent was insufficient toraise a triable issue of fact (seeHamilton v King Tung Kong, 93 AD3d 821 [2012]; Sulaiman v Thomas, 54 AD3d751 [2008]).
Contrary to the Florist defendants' contention, that branch of the plaintiffs' motionwhich sought summary judgment on the issue of liability was not premature, since theFlorist defendants failed " 'to offer an evidentiary basis to show that discoverymay lead to relevant evidence and that the facts essential to justify opposition to themotion were exclusively within the knowledge and control of the plaintiff[s]' "(Martinez v Kreychmar, 84AD3d 1037, 1038 [2011], quoting Cavitch v Mateo, 58 AD3d 592, 593 [2009]; see Rodriguez v Farrell, 115AD3d 929 [2014]; Robinson v Bond St. Levy, LLC, 115 AD3d 928[2014]).
Accordingly, the Supreme Court properly granted that branch of the plaintiffs'motion which was for summary judgment on the issue of liability insofar as assertedagainst the Florist defendants. Mastro, J.P., Dickerson, Hinds-Radix and Duffy, JJ.,concur.