County of Nassau v Fuentes, 2009 NY Slip Op 05843 (App. Div., 2nd, 2009)
In support of his motion for summary judgment dismissing the complaint,
the defendant made a prima facie showing of entitlement to judgment as
a matter of law by submitting an affidavit in which he denied receiving
notice, prior to the commencement of this action, that his vehicle
might be subject to a forfeiture action (see Nassau County Administrative Code § 8-7.0[g][4][a]; County of Nassau v Bassen, 14 Misc 3d 633; see generally Alvarez v Prospect Hosp.,
68 NY2d 320). However, in opposition to that showing, the plaintiff,
County of Nassau, raised a triable issue of fact by producing copies of
a "Vehicle Seizure Notice," purportedly signed by the defendant at the
time of his arrest for the underlying offense, and a return receipt
card, also purportedly signed by the defendant, acknowledging receipt
of a letter the County allegedly sent to him prior to the commencement
of this action. Both documents advised that the subject vehicle might
be the subject of a forfeiture action. While we conclude that the
County's showing was sufficient to raise an issue of fact warranting
denial of the defendant's motion, contrary to the County's contention,
it did not warrant the granting of that branch of its cross motion
which was for summary judgment on the complaint, as the genuineness of
the defendant's purported signatures on the documents described above
presents an issue of fact (see Seoulbank, N.Y. Agency v D & J Import & Export Corp., 270 AD2d 193, 194; Dyckman v Barrett, 187 AD2d 553, 555).
Saunders v 551 Galaxy Realty Corp., 2009 NY Slip Op 05763 (App. Div., 2nd, 2009)
The defendants failed to submit sufficient evidence in admissible form
to make a prima facie showing of entitlement to judgment as a matter of
law. The defendants offered no evidence, other than inadmissible
hearsay, as to why the air conditioner fell from the window. The
defendants failed to show that they were not negligent in their initial
inspection of the air conditioner's installation. No evidence was
provided as to the defendants' general policy on inspecting and
maintaining air conditioning units installed on the premises, and the
defendants failed to show that, as the owners of the property, they
relinquished exclusive control of the apartment and the window from
which the air conditioner fell, to a tenant who had no lease, thus
absolving them of liability (see Spanbock v Fifty Fourth St. Condominium, 3
AD3d 395). Accordingly, the Supreme Court properly denied the
defendants' motion for summary judgment dismissing the complaint
without considering the sufficiency of the plaintiff's opposition
papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
Schechter v 3320 Holding LLC, 2009 NY Slip Op 05684 (App. Div., 1st, 2009)
For a witness to be qualified as an expert, the witness must possess
the requisite skill, training, education, knowledge or experience from
which it can be assumed that the opinion rendered is reliable (Matott v Ward,
48 NY2d 455, 459 [1979]). Here, Santiago had no formal training or
education, and does not possess any certification or license, with
respect to elevator maintenance or repair. He was not, however,
precluded from being qualified as an expert for lack of formal training
and education; he could have been qualified if through "long
observation and actual experience" (Price v New York City Hous. Auth.,
92 NY2d 553, 559 [1998] [internal quotation marks and brackets
omitted]) he possessed sufficient skill, knowledge and experience in
elevator maintenance and repair to support an assumption that his
opinion regarding the cause of the interlock's failure was reliable.
But Imperial Elevator failed to submit evidence demonstrating that
Santiago possessed such skill, knowledge and experience (see Rosen v Tanning Loft, 16 AD3d 480 [2005], citing, among other cases, Hofmann v Toys "R" Us, NY Ltd. Partnership, 272 AD2d 296 [2000]; see also Hellert v Town of Hamburg, 50 AD3d 1481 [2008], lv denied
11 NY3d 702 [2008]). No evidence was submitted demonstrating what
on-the-job training Santiago received from the coworker at his prior
employer; Santiago's duties as a "maintenance man" — "check[ing] for
oil, check[ing] [and cleaning] the [inter]locks," "cleaning the motor
room, cleaning the top of the ca[b], [and] cleaning the pit [beneath
the elevator]" — do not suggest that he can render a reliable opinion
regarding the cause of the failure of the interlock; and Santiago's
deposition testimony does not demonstrate that he is familiar with the
laws, rules, regulations, and accepted customs and practices in the
field of elevator maintenance and repair (cf. Efstathiou v Cuzco, LLC, 51 AD3d 712
[2008]). Because Imperial Elevator failed to demonstrate that Santiago
is qualified to render a reliable opinion regarding the cause of the
failure of the interlock, it failed to raise a triable issue of fact
with respect to the issue of its negligence.
Our dissenting colleague concludes that Santiago is qualified
to render an opinion regarding the cause of the failure of the
interlock because he worked on elevators for approximately 20 years and
that work entailed, among other things, "checking" and cleaning
interlocks, including the interlocks in the elevator of this building.
We disagree that these factors establish that Santiago was competent to
render an opinion regarding the cause of the failure of the
interlock. Evidence that a person has experience "servicing and
repairing elevators," standing alone, does not establish that the
person possesses the requisite skill, training, education, knowledge or
experience from which it can be assumed that the person can render a
reliable [*4]opinion regarding the cause of the failure of an interlock (see Matott, 48 NY2d at 459).
Dickman v Stewart Tenants Corp. (221 AD2d 158 [1995]), cited by our dissenting colleague, is distinguishable. In Dickman,
we rejected the defendant's claim that the plaintiff's expert was not
qualified to testify regarding the causes of the misleveling of an
elevator. We did so because that claim was unpreserved. In dicta, we
stated that "the expert was qualified to testify regarding [causation]
as he had 44 years of experience in the installation, maintenance and
repair of elevators, including his tenure as one of four Staff Field
Engineers with Otis Elevator Company" (id. at 158-159); no mention was made of the expert's skills, training, education, knowledge or other experience. The briefs in Dickman,
however, disclose that the expert had been found qualified to render an
expert opinion regarding the maintenance and repair of elevators in
numerous other cases in both state and federal courts; after more than
10 years as an elevator mechanic, he trained elevator mechanics for 21
years; he had served as the vice president in charge of maintenance,
modernization and repair of an elevator maintenance and repair company;
and, for the 14 years prior to giving the testimony, he had operated an
elevator consulting business. Thus, Dickman does not support our dissenting colleague's assertion that Santiago is similarly qualified.
Make sure to read the dissent.
The bold is mine.
bruteforcelawyer.com 