Not Surprising, The First Department Expects Lawyers Properly To File Motion Papers

On an appeal of a trial court order granting summary judgment to defendant in an elevator accident case, the First Department reversed the dismissal of the action because defendant’s counsel did not properly file a copy of the video on which its expert relied to show plaintiff was responsible for the accident.  Amezquita v. RCPI Landmark Props., LLC, 2021 Slip Op. (First Dep’t May 11, 2021) series/2021/2021_02979.htm?utm_campaign=Pubs&utm_medium=email&_hsmi=128508462&_hsenc=p2ANqtz–JdCcDEMXgFT9O3ly83lpRqaNf06nzY-1yUtRfKY6tKlhT4c_nq9LDel2kUktng8IwHCtuwd9942c5RVmLwIqIiF-SFg&utm_content=128508462&utm_source=hs_email

Apparently defense counsel inserted a page in its moving papers stating that video would be made available upon request of the Court. The Court made clear that is not good enough. The Court stated, “[b]ecause defendants failed to comply with these procedures, the video never became part of the record and thus cannot be reviewed by this Court.” Adding insult to injury, the Court added that “the expert’s affidavit raises issues of fact as to whether the elevator should not have been able to run if plaintiff did not fully close the scissor gate before her accident.” Accordingly, “the defendants’ motion should be denied without regard to the sufficiency of plaintiff’s papers in opposition.”

Fair warning from the First Department that showing up with all of your evidence is half the battle. Sometimes, the little things matter very much. There but for the grace of God . . . .


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