Gogos v Modell's Sporting Goods, Inc., 2011 NY Slip Op 05435 (App. Div., 1st 2011)
The dissent refers extensively to a second affidavit by Michael Feeley, dated August 31, 2009, submitted in opposition to plaintiffs' motion dated July 8, 2009, to strike defendant's answer for failure to preserve evidence. This affidavit, which was submitted 20 months after the court ordered defendant to produce the tapes and approximately 36 months after the accident, states, inter alia, "Each tape would be recycled and taped over on a constant thirty day basis. It appears that this is what happened to the videotapes from the store on the date of the plaintiff's accident." This affidavit completely contradicts the deposition testimony of defendant's store manager, Cesar Abreu, who testified more than a year earlier that a videotape was made on the day of the accident and was kept in a safe in the office of the store. Abreu also testified at his deposition, taken six months after the court order has issued, that the tapes made at that time were in the store. Despite the glaring inconsistencies between Feeley's testimony and that of manager Abreu, the dissent continues to argue, by selective reading of Abreu's testimony, that Feeley's testimony is not inconsistent with that of Abreu, an indefensible position.
The Feeley affidavit is nothing more than a last-minute attempt by defendant to tailor the facts and present a feigned factual issue to avoid the consequences of the admission by manager Abreu, six months after the court order was issued, that the subject tapes were retained on defendant's premises, and is, thus, without probative value (Capraro v Staten Is. Univ. Hosp., 245 AD2d 256, 257 [1997]). Further, a self-serving affidavit by the vice president of a subsidiary of defendant offered to contradict the deposition testimony — here, the testimony of defendant's own general manager — or to retract a previous admission does not raise a bona fide issue of fact and will be disregarded (see Lupinsky v Windham Constr. Corp., 293 AD2d 317, 318 [2002]).
It appears that Feeley was not the vice president of defendant's Modell's II subsidiary at the time of plaintiff's accident, nor did he work at the premises where the accident occurred. On the other hand, Cesar Abreu was defendant's general manager at the subject store, interviewed the injured plaintiff immediately after the accident, called an ambulance for her, investigated the accident, and prepared the accident report. As opposed to Feeley, Abreu is a witness with actual personal knowledge of the facts, and he testified as to how the videotapes on the date of the accident were prepared and retained by defendant.
The affidavit by Michael Feeley is deficient. Throughout its writing, the dissent at times refers to Feeley as "defendant's vice president," a misidentification conveying the false and misleading impression that Feeley was employed in a capacity giving him personal knowledge of the facts of this case. Once again, Michael Feeley is not the vice president or even an employee of defendant corporation. In both of his affidavits, he avers that he is the current "Vice President of Modell's II, Inc., a subsidiary of [defendant corporation]." Nowhere in his affidavits does he state whether there was any operational connection between Modell's II and defendant corporation, two separate and distinct entities, a fact that the dissent does not want to acknowledge. In any event, the dissent misses the point. Feeley, who is not an employee of defendant corporation, makes the conclusory allegation that he is "fully familiar with the operations of this store, including the surveillance cameras located in certain parts of the store," without any explanation of the source of his knowledge (see Peacock v Kalikow, 239 AD2d 188, 190 [1997]). He does not state the nature of his duties, if any, with respect to defendant, a corporation he apparently has no connection with, so as to shed light on the manner in which he allegedly obtained knowledge of the facts of this case. Thus, his affidavit is without probative value (id.). This Court is empowered to decide, sua sponte, that an affiant is without personal knowledge of the facts in a case by simply reviewing the substance of the affidavit (see e.g. Adam v Cutner & Rathkopf, 238 AD2d 234, 238 [1997]). We are not required to accept Feeley's testimony as competent evidence merely because he "swore to the fact . . .," as the dissent urges. It is the burden of the proponent of an affidavit to demonstrate the basis of the affiant's knowledge (see id. at 239-240), and here, defendant failed to meet that burden. It appears that the dissent is placing the burden of proof on the wrong party when it states that "[p]laintiffs' counsel offered no factual basis for his assertion that the vice president had no personal knowledge of the facts . . ." It further appears that the dissent is advancing a legal concept that anyone remotely related to a party to an action can claim to have personal knowledge of the facts of the internal workings of that party by merely reciting, without more, his or her remote connection, to that party. That is not the law. Thus, the dissent's conclusion that Feeley has personal knowledge of the facts based solely on Feeley's statement that he is the current vice president of defendant's subsidiary corporation is without factual or legal basis and must be rejected as untenable.
The dissent is incorrect when it states that "at no time have plaintiffs ever argued that the vice president's position as an officer of the subsidiary was at all relevant, let alone that it provided a ground for disregarding his affidavit." In the reply affirmation dated September 10, 2009, plaintiffs' attorney stated that "the Court should not be misled by the improper self-serving and speculative affidavits from defendant's two off-site executives with no personal knowledge of the facts." Because the dissent's arguments are premised on the self-serving statements by Michael Feeley, its entire position falls along with the affidavits, which lack merit and probative value.
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