No Subsitute for SJ: CPLR R. 3212(a)

CPLR R. 3212(a)

Brewi-Bijoux v City of New York, 2010 NY Slip Op 04535 (App. Div., 2nd, 2010)

Initially, we note that while the defendants characterized their motion as one for in limine relief to dismiss the complaint for failure to establish a prima facie case, the record reveals that the motion actually was one for summary judgment. "[A] motion in limine is an inappropriate substitute for a motion for summary judgment" (Rondout Elec. v Dover Union Free School Dist., 304 AD2d 808, 810-811; see Rivera v City of New York, 306 AD2d 456, 457). Moreover, the Supreme Court improvidently exercised its discretion in considering this late motion since the defendants failed to offer any excuse for their failure to timely move for summary judgment (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648; Nobile v Town of Hempstead, 17 AD3d 647; Clermont v Hillsdale Indus., 6 AD3d 376, 377). Such failure warrants denial of the motion without consideration of the merits thereof (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725; Brill v City of New York, 306 AD2d 456). Accordingly, we reinstate the complaint.

[Edit 6/4] found another one

West Broadway Funding Assoc. v Friedman, 2010 NY Slip Op 04781 (App. Div., 2nd, 2010)

Post Note of Issue Discovery and the “Wherefore” clause.

Don't get too caught up in the NOI discovery issue.  Read all the way down where the court discusses the "Wherefore" clause.  This is why you put in "such other, further, or different
relief" etc etc etc.

22 NYCRR 202.21 Note
of issue and certificate of readiness

Tirado v Miller, 2010 NY Slip Op 04364 (App. Term, 2nd, 2010)

A certificate of readiness certifies that all discovery is completed,
waived, or not required and that the action is ready for trial (see 22
NYCRR 202.21[b]). The effect of a statement of readiness is to
ordinarily foreclose further discovery (see Blondell v Malone, 91
AD2d 1201; Niagara Falls Urban Renewal Agency v Pomeroy Real Estate
Corp., 74 AD2d 734; Bookazine Co. v J & A [*3]Bindery, 61 AD2d 919).

Discovery that is nevertheless sought after the filing of a note
of issue and certificate of readiness is governed by a different set of
procedural principles than discovery that is sought prior to the filing
of a note of issue. Pre-note discovery includes disclosure of "all
matter material and necessary in the prosecution or defense of an
action" (see CPLR 3101[a]), which is to be liberally construed (see
Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406; Byck v
Byck, 294 AD2d 456, 457; U.S. Ice Cream Corp. v Carvel Corp., 190
AD2d 788). Post-note discovery, on the other hand, may only be sought
under two procedural circumstances set forth in 22 NYCRR 202.21. As
discussed by this Court in an opinion by Justice Feuerstein in Audiovox
Corp. v Benyamini (265 AD2d 135, 138), one method of obtaining
post-note discovery is to vacate the note of issue within 20 days of its
service pursuant to 22 NYCRR 202.21(e), by merely showing that
discovery is incomplete and the matter is not ready for trial. The
second method, beyond that 20 days, requires that the movant, pursuant
to 22 NYCRR 202.21(d), meet a more stringent standard and demonstrate
"unusual or unanticipated circumstances and substantial prejudice"
absent the additional discovery (Audiovox Corp. v Benyamini, 265
AD2d at 138; see Schroeder v IESI NY Corp., 24 AD3d 180, 181; Aviles
v 938 SCY Ltd., 283 AD2d 935, 936).

Here, it is not contested that the note of issue and certificate
of readiness were filed in February 2008. The note of issue was never
stricken as a result of any motion filed within the 20-day deadline set
forth in 22 NYCRR 202.21(a). Accordingly, any additional discovery
sought by the plaintiff from Travelers must meet the requirements of 22
NYCRR 202.21(d) that the discovery be needed because of "unusual or
unanticipated circumstances" and that its absence causes "substantial
prejudice."

We recognize that the trial court did not grant any unrequested
relief, but rather, granted the specific relief sought by the defendants
and Travelers in their motion of quashing the plaintiff's subpoena and,
in effect, granting a protective order. On appeal, the plaintiff takes
issue, inter alia, with the Supreme Court's having determined the motion
on a ground unrelated to the privilege and relevance issues briefed by
the parties. However, in rendering decisions on motions, trial courts
are not necessarily limited by the specific arguments raised by parties
in their submissions. CPLR 2214(a) provides that a notice of motion
shall specify the time and place of the hearing on the motion, the
supporting papers upon which it is based, the relief demanded, and the
grounds therefor. A court typically lacks the jurisdiction to grant
relief that is not requested in the moving papers (see McGuire v
McGuire, 29 AD3d 963, 965; NYCTL 1998-1 Trust v Prol Props.
Corp., 18 AD3d 525, 527). The notice of motion in this instance
sought an order quashing the subpoena and granting a protective order on
the limited grounds of privilege and irrelevance. However, the notice
of motion also contained a general prayer, for "such other and further
relief as [the] [c]ourt may deem just and proper."

General relief clauses, for "such other, further, or different
relief," are often included in notices of motion by practitioners to
cover the possibility that the appropriate relief is not what the movant
has specifically asked for, "but is close enough to enable the court to
grant it" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY,
Book 7B, CPLR C2214:5). The presence of a general relief clause enables
the court to grant relief that is not too dramatically unlike that which
is actually sought, as long as the relief is supported by proof in the
papers and the court is satisfied that no party is prejudiced (see
Frankel v Stavsky, 40 AD3d 918; HCE Assoc. v 3000 Watermill Lane
Realty Corp., 173 AD2d 774; Lanaris v Mutual Benefit Life Ins.
Co., 9 AD2d 1015).

The bold is mine.

Choose your reasonable excuse wisely, you might get stuck with it. CPLR R. 5015

CPLR R. 5015

Tadco Constr. Corp. v Allstate Ins. Co., 2010 NY Slip Op 04362 (App. Div., 2nd, 2010)

The plaintiff moved for leave to enter a default judgment upon the
defendant's failure to answer or appear and the defendant thereafter
cross-moved to vacate its default on the ground that it had not been
properly served with the Summons with Notice. Although the Supreme Court
determined, after a hearing, that the defendant had been properly
served pursuant to CPLR 308(2), it vacated the defendant's default and
granted the defendant leave to serve an answer.

On appeal, the plaintiff contends that the Supreme Court erred in
vacating the defendant's default. In addition, the defendant seeks to
challenge by way of cross-appeal the Supreme Court's determination that
it was properly served with process. Although the defendant's
cross-appeal must be dismissed on the ground that it is not aggrieved by
the order vacating its default, the contentions raised by the defendant
can be considered as alternative grounds for affirmance (see
Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539,
545-546; Matter of Allstate Ins. Co. v Leach, 15 AD3d 649).
[*2]

In seeking to vacate its
default, the defendant was required to demonstrate a reasonable excuse
for the default and a potentially meritorious defense (see Sime v
Ludhar, 37 AD3d 817; Professional Bookkeeper, Inc. v L & L
N.Y. Food Corp., 18 AD3d 851; Fekete v Camp Skwere, 16 AD3d
544). Contrary to the defendant's contentions, the evidence adduced at
the hearing fully supports the Supreme Court's determination that it was
properly served with process pursuant to CPLR 308(2) (see Fashion
Page v Zurich Ins. Co., 50 NY2d 265, 271-272; Aguilera v Pistilli
Constr. & Dev. Corp., 63 AD3d 765; Eastman Kodak Co. v
Miller & Miller Consulting Actuaries, 195 AD2d 591).

Since the defendant offered no other excuse for its default, the
Supreme Court improvidently exercised its discretion in vacating the
default (see Pezolano v Incorporated City of Glen Cove, 71 AD3d
970; Sime v Ludhar, 37 AD3d 817; Professional Bookkeeper, Inc.
v L & L N.Y. Food Corp., 18 AD3d at 851). Accordingly, the
Supreme Court should have denied the defendant's cross motion and
granted the plaintiff's motion for leave to enter a default judgment.

This case inspired me to add a new tag, "It's kind of a big deal."

Civil Contempt

Delijani v Delijani, 2010 NY Slip Op 04332 (App. Div., 2nd, 2010)

" To sustain a finding of civil contempt based upon a violation of a
court order, it is necessary to establish that a lawful court order
clearly expressing an unequivocal mandate was in effect and the
person alleged to have violated the order had actual knowledge of its
terms'" (Ottomanelli v Ottomanelli, 17 AD3d 647, 648
[emphasis added], quoting Kawar v Kawar, 231 AD2d 681, 682
[internal quotation marks omitted]; see Judiciary Law § 753; McCain
v Dinkins, 84 NY2d 216, 227; Miller v Miller, 61 AD3d 651, 652; Massimi v Massimi, 56 AD3d 624). Moreover,
"due process requires that, in contempt proceedings, the contemnor be
afforded an opportunity to be heard at a meaningful time and in a
meaningful manner'" (Matter of Mosso v Mosso, 6 AD3d 827, 829,
quoting 16D CJS, Constitutional Law § 1425; see Chamberlain v Chamberlain, 24 AD3d 589,
595; Matter of Janczuk v Janczuk, 305 AD2d 680, 681).

In its September 2, 2009, order, the Supreme Court granted that
branch of the plaintiff's motion which was to hold the defendant in
contempt of court "insofar as defendant is found in contempt for his
violation of the June 18, 2009 Order of this Court." However, as noted,
there is no indication that any court order was entered or even issued
on June 18, 2009. Nor can the promise made by defense counsel during
colloquy in open court on that date, regarding restoration of the
electric power, qualify as the " lawful order of the court, clearly
expressing an unequivocal mandate,'" which is necessary before a finding
of contempt can be made (Massimi v Massimi, 56 AD3d at 624;
quoting Matter of McCormick v Axelrod, 59 NY2d 574, 583; see Ottomanelli v Ottomanelli 17 AD3d 647; Kawar
v Kawar, 231 AD2d at 682).

We further note that in the order dated September 2, 2009, the
Supreme Court specifically concluded that the plaintiff had failed to
demonstrate her compliance with the December 5, 2008, order and, thus,
that the "defendant cannot be held in contempt for his non-compliance"
with said order (emphasis added). Accordingly, inasmuch as the
defendant was not found to have willfully violated any "order" of the
court, the finding of contempt against him was erroneous (see Massimi
v Massimi, 56 AD3d at 625; Rienzi v Rienzi, 23 AD3d 447; Ottomanelli v Ottomanelli, 17 AD3d 647).

On a sort of related note, I ran across a case where the trial court was affirmed after sanctioning a party,

Miller v Cruise Fantasies, Ltd., 2010 NY Slip Op 04970 (App. Div., 2nd, 2010)

"A court may sua sponte impose sanctions against an attorney or a
party to the litigation, or against both, but the attorney or party to
be sanctioned must be afforded a reasonable opportunity to be heard" (Kamen v Diaz-Kamen, 40 AD3d 937, 937; see
22 NYCRR 130-1.1[a], [d]; Matter of Griffin v Panzarin, 305 AD2d
601, 603; Kelleher v Mt. Kisco Med. Group, 264 AD2d 760, 761; Morrison
v Morrison, 246 AD2d 634). Conduct during litigation is frivolous
and subject to sanction and/or the award of costs under 22 NYCRR 130-1.1
"if it is completely without merit in law and cannot be supported by a
reasonable argument for an extension, modification or reversal of
existing law or . . . it is undertaken primarily to delay or prolong the
resolution of the litigation, or to harass or maliciously injure
another" (Astrada v Archer, 71 AD3d 803, 807 [internal
quotation marks omitted]; see Greene v Doral Conference Ctr. Assoc., 18
AD3d 429, 431; Tyree Bros. Envtl. Servs. v Ferguson Propeller,
247 AD2d 376, 377).

Substitution of Experts: CPLR § 3101(d)

CPLR § 3101(d) Trial Preparation

Maddaloni Jewelers, Inc. v Rolex Watch U.S.A., Inc., 2010 NY Slip Op 04454 (App. Div., 1st, 2010)

The motion court exercised its discretion in a provident manner in
denying defendant's motion for preclusion. Although defendant may have
incurred expenses in preparing a rebuttal to plaintiff's initial
expert's report, there was no indication that plaintiff's substitution
of its expert was willful or prejudicial to defendant (see Gallo v
Linkow, 255 AD2d 113, 117 [1998]). The record demonstrates that the
case had been already been delayed due to defense counsel's surgery and
was again delayed because of a change of Justices assigned to the case.
Plaintiff's service of its substitution of experts was neither done on
the eve of trial nor at the last-minute, as no trial date was set at the
time the substituted expert was hired (see e.g. Mateo v 83 Post Ave. Assoc., 12 AD3d 205,
205-206 [2004]). Furthermore, even assuming that plaintiff was required
to show "good cause" (CPLR 3101[d][1][i]), its proffered reason for the
substitution of experts, namely, the breakdown in its relationship with
its former expert, sufficiently established such "good cause" (compare Lissak v Cerabona, 10 AD3d 308,
309-310 [2004]).

The motion court providently exercised its discretion in refusing
to award legal fees and costs attributable to the substitution of the
expert. "An award of attorneys' fees as a direct remedy must be based on
contract or statute" or where there is established wrongdoing (City
of New York v Zuckerman, et al., 234 AD2d 160 [1st Dept 1996], app
dismissed 90 NY2d 845 [1997]). While a party may be ordered to bear
the cost of his or her adversary's rebuttal expert where a party fails
to disclose the substance of the expert's testimony in accordance with
CPLR 3101 and where the matter is on for trial (see St. Hilaire v
White, 305 AD2d 209 [2003]), here, plaintiff's notice of
substitution of its expert was offered months before the action was
scheduled [*2]for trial, and there is no
showing that plaintiff acted improperly in attempting to substitute
experts.

The bold is mine.

I’ll bet this happens a lot. CPLR 5015

CPLR R. 5015

CPLR
§ 105 Definitions
(u) Verified
pleading. A “verified pleading” may be utilized as an affidavit
whenever the latter is required.

Ramos v Jake Realty Co., 2010 NY Slip Op 50934(U (App. Term, 1st, 2010)

While plaintiff's excuse for his failure to appear for trial was hardly
overwhelming, under the particular circumstances here presented and in
light of the policy favoring the resolution of actions on their merits,
it was sufficient to warrant affording plaintiff vacatur relief.
Plaintiff's attorney, while on vacation abroad, received a message from
defense counsel requesting an adjournment of the trial date due to the
unavailability of a defense witness. Plaintiff's attorney orally
consented to the adjournment and, believing that defense counsel would
obtain the adjournment, did not appear for trial. Notably, a letter from
defense counsel to the court, which defense counsel shared with
plaintiff's counsel, corroborates plaintiff's counsel's belief that
defense counsel would seek the adjournment. Although the better practice
would have been for plaintiff's counsel to appear for trial to confirm
that the matter would be adjourned (and be prepared to go forward if the
request for the adjournment was denied), we conclude that plaintiff's
default was attributable to excusable law office failure (see
generally Delagatta v McGillicuddy,31 AD3d 549 [2006]; Cannon v
Ireland's Own, 21 AD3d 264 [2005]). Plaintiff also established a
potentially meritorious claim against defendants through his verified
pleadings (see Gironda v Katzen, 19 AD3d 644 [2005]; Key Bank,
N.A. v NY Cent. Mut. Fire Ins. Co., 144 AD2d 847 [1988]). We note
too that the Appellate Division, First Department previously concluded
that numerous triable issues exist in this action precluding summary
judgment in defendants' favor (Ramos v Jake Realty Co., 21 AD3d
744 [2005]).

Notice the meritorious defense through the verified pleadings bit.  See, CPLR
§ 105.

Would the the excuse have flown in the Second Department?  Probably not.  A.B.
Med. Servs., PLLC v GLI Corporate Risk Solutions, Inc., 25 Misc 3d 137(A) (App. Term, 2nd, 2009) ("Plaintiffs'
allegation of law office failure is factually insufficient (see
Robinson v New York City Tr.
Auth., 203 AD2d 351 [1994]), in that they failed to explain whether
the normal two-part
procedure for assigning a per diem attorney to cover a court appearance,
as outlined in their
submission to the court, was followed in its entirety.").

10,000 hours

It's been argued that it takes 10,000¹ hours to become proficient in any given endeavor.  Maybe proficient isn't the right word.  Exceptional.  It takes about 416 days–assuming 24 hour work per day–to become exceptional.  For a lot of people, this is old news.  For others², this is old news and wrong.  As for me, I just think it's interesting.

And for some reason, it reminds me of David Foster Wallace and his book, Infinite Jest. If you read the book, you probably know what I mean.  David Foster Wallace committed suicide in 2008³. He was exceptional. It didn't matter.  Greatness is not the same thing as happiness.  It's easy to confuse the two. 

Strive to be great.  Put in your time.  Try to make sure that at the end of those 10,000 hours, that you haven't killed yourself in 1 hour increments.

——————————-

1. Outliers, by Malcom Gladwell.  Which, by the way is a great book.  Blink is better.  Read both.

2. Seth Godin

3.  The world is worse off for not having him here.

Renewal proper to correct “procedural oversight” CPLR R. 2221

CPLR R. 2221
(e)
Motion for Leave to Renew

Zhijian Yang v Alston, 2010 NY Slip Op 04236 (App. Div., 1st, 2010)

The burden then shifted to plaintiff. Initially, we find that in the
absence of any prejudice to defendants, renewal was properly granted to
plaintiff to correct a procedural oversight on the previous motion and
allow the submission of her examining physician's report in admissible
form (see Cespedes v McNamee, 308 AD2d 409 [2003]). However, upon
renewal, Supreme Court should have adhered to its original
determination granting defendants' motion for summary judgment because
plaintiff failed to raise a triable issue of material fact as to whether
she sustained a serious injury in this accident.

Strange.  Generally, a motion to renew requires an explanation for failing to provide the evidence in the first place.  The Court cites to Cespedes:

The IAS court originally granted defendants' motion for summary judgment because the physician's report that plaintiff submitted in opposition was neither sworn nor affirmed pursuant to CPLR 2106. Immediately after learning of the court's decision, plaintiff moved to renew and reargue, submitting his doctor's findings in affidavit form, and explaining, through his attorney and doctor, that neither realized the report was unsworn until after receiving the IAS court's order. The IAS court properly granted plaintiff's motion, which, contrary to its designation, was one to renew, not reargue, since it was based on newly submitted evidence (see Telep v Republic El. Corp., 267 AD2d 57 [1999]). Renewal may be granted where the failure to submit a doctor's report in affidavit form “'was inadvertent, and … absen[t] … any showing by defendants of prejudice attributable to the short delay caused by such failure”' (Ramos v Dekhtyar, 301 AD2d 428, 429 [2003]; see also Segall v Heyer, 161 AD2d 471 [1990]). Defendants show no prejudice. On the merits, an issue of fact as to whether plaintiff sustained a serious injury is raised by his doctor's affidavit correlating significant quantified range of motion limitations in plaintiff's lower back, among other conditions, including lumbar muscle spasms, to a herniated disc revealed in an MRI taken shortly after the accident, and opining that the disability to plaintiff's back is permanent (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 350, 352-353 [2002]; Gonzalez v Vasquez, 301 AD2d 438 [2003]; Aguilar v N.Y.C. Water Works, 298 AD2d 245 [2002]).

On not writing.

Most of my posts are short on substance and style.  I find a case, I cite the rule or section, and I copy and paste the portion that I think is relevant or interesting.  Sometimes I see a case worth writing about.  But more often that not, it would take far too much time to actually write about it.  Take Shady Grove for example.  That case is a big deal.  It deserves more attention than I gave it.  I just don't have the time.  Let's not forget that I have a job.  One that requires me to do work and not blog.  Nobody pays me to keep this up.

I start and stop projects with regular frequency.  Sometimes when I'm sitting at home or on the train I think of something and start writing because I need to get it on paper so I don't forget.  I keep on writing until I hit a roadblock, get tired, or one of my kids makes me put cartoons on the computer.  Spending a few hours on the train every day gives me time to think about stuff.  For whatever reason, my mind usually wanders towards the CPLR.

Right now I have a two page article on CPLR R. 5015, most of which is footnotes.  I think there are 14 of them and most of them take a few lines.  I was toying with the idea of turning into a law review¹ article or a law journal article.  It's interesting stuff.  Really.  But I run a 20% chance or so of finishing it.  In a couple of days I will find something else to start writing about and forget about 5015.  A few months from now, I will find the 5015 article and try to remember why I thought it was so damn interesting in the first place.  I won't remember.

In a way, you're lucky I don't write more.  I do that on the no-fault blog.  I already have two posts about people walking in front of me and me being aggravated by them.  For some reason it makes sense over there.  Over here it just seems silly.  I picture most of the readers here to be nerds, and not the sort of nerds who want to read about that stuff or who will find pictures of a bare chested Warren Buffet riding a gecko remotely amusing.  Maybe I have you all pegged as the wrong type of nerds.

I'm sure someone was wondering why.  Now you know.  There, don't you feel better.

——————-

1.  A man can dream.

CPLR R. 3212; 4518 Gaps in proof not enough. Records not admissible. Plus CPLR 3116(a): Deposition not signed

CPLR R. 3212 Motion for summary judgment

CPLR R. 4518 Business records

CPLR R. 3116 Signing deposition; physical preparation; copies

(a) Signing.

Shafi v Motta, 2010 NY Slip Op 03895 (App. Div., 2nd, 2010)

On their motion for summary judgment, the defendants had the burden of
establishing, by proof in admissible form, their prima facie entitlement
to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v
City of New York, 49 NY2d 557, 561; Myers v Ferrara, 56 AD3d
78, 83). This burden may be satisfied only by the defendant's
affirmative demonstration of the merit of the defense, rather than
merely by reliance on gaps in the plaintiffs' case (see DeFalco v
BJ's Wholesale Club, Inc., 38 AD3d 824, 825; Cox v Huntington
Quadrangle No. 1 Co., 35 AD3d 523, 524; Pearson v Parkside Ltd.
Liab. Co., 27 AD3d 539; Mondello v DiStefano, 16 AD3d 637,
638). Here, the defendants submitted [*2]hospital
laboratory reports and records of the New York City Department of
Health and Mental Hygiene. As the Supreme Court concluded, however,
because these documents were neither certified nor authenticated, and
thus were not in admissible form, they could not be considered on the
motion (see CPLR 4518[c]; Banfield v New York City Tr. Auth.,
36 AD3d 732; Baez v Sugrue, 300 AD2d 519, 520; cf. Whitfield v
City of New York, 48 AD3d 798, 799). Moreover, the affirmation of
the defendants' attorney submitted with very brief excerpts of
deposition testimony was insufficient to establish the defendants'
entitlement to judgment as a matter of law (see Irving v Great Atl.
& Pac. Tea Co., 269 AD2d 358, 359; Cicolello v Limb, 216
AD2d 434). Inasmuch as the defendants failed to carry their burden,
denial of the motion was required without regard to the sufficiency of
the papers submitted in opposition (see Winegrad v New York Univ.
Med. Ctr., 64 NY2d 851, 853; Molina v Belasquez, 1 AD3d 489).

Marmer
v IF USA Express, Inc., 2010 NY Slip Op 04151 (App. Div., 2nd, 2010)

The defendants did not meet their prima facie burden of showing that the
plaintiff did not sustain a serious injury as a result of the subject
accident. Specifically, the defendants failed to show that the plaintiff
did not sustain a medically-determined injury or impairment of a
nonpermanent nature which prevented her from performing substantially
all of the material acts which constituted her usual and customary daily
activities for a period of not less than 90 days during the 180-day
period immediately following the subject motor vehicle accident, as
articulated in Insurance Law § 5102(d) (hereinafter the 90/180-day
category) (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy
v Eyler, 79 NY2d 955, 956-957). In the plaintiff's bill of
particulars, she clearly set forth that, as a result of the subject
motor vehicle accident, she sustained, inter alia, a serious injury
under the 90/180-day category of Insurance Law § 5102(d). The affirmed
reports of the defendants' examining physicians did not specifically
relate any of their findings to this 90/180-day category of serious
injury (see Negassi v Royle, 65 AD3d 1311; Ismail v Tejeda, 65
AD3d 518; Neuberger v Sidoruk, 60 AD3d 650; Miller v Bah, 58
AD3d 815; Scinto v Hoyte, 57 AD3d 646). Further, the unsigned
deposition transcript of the plaintiff, which the defendants submitted
in support of their motion, did not constitute admissible evidence in
light of the defendants' failure to demonstrate that the transcript was
forwarded to the plaintiff for her review pursuant to CPLR 3116(a) (see
Martinez v 123-16 Liberty Ave. Realty Corp., 47 AD3d 901; McDonald
v Mauss, 38 AD3d 727; Pina v Flik Intl. Corp., 25 AD3d 772; Santos
v Intown Assoc., 17 AD3d 564). Since the defendants [*2]failed to meet their prima facie burden, we
need not consider whether the plaintiff's opposition papers were
sufficient to raise a triable issue of fact (see Negassi v Royle, 65
AD3d 1311; Ismail v Tejeda, 65 AD3d 518; Neuberger v Sidoruk,
60 AD3d 650; Miller v Bah, 58 AD3d 815).

The bold is mine.