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.