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DEFENDANTS DID NOT FOLLOW THE PROCEDURES FOR ELECTRONICALLY FILING A VIDEO; THEREFORE THE VIDEO WAS NOT AVAILABLE TO THE COURT AND DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the video evidence relied upon by defendants’ expert in this elevator-malfunction personal-injury case was not properly electronically filed and therefore was unavailable for review. Because of the unavailability of the evidence defendants’ motion for summary judgment should have been denied:

Defendants failed to establish prima facie that plaintiff was the sole proximate cause of the injuries she sustained when the manual freight elevator that she was operating suddenly stopped moving … . Defendants submitted an affidavit by an expert professional engineer who opined — based on his review of the surveillance footage of plaintiff’s accident and still images purportedly extracted therefrom — that plaintiff failed to fully close the elevator car’s scissor gate, which then opened while the elevator car was in flight, triggering the elevator’s sudden stop. However, they failed to submit the video footage on which their expert relied. Instead, in this electronically filed case, defendants submitted a sheet of paper that read, “Copy of the video to be provided upon the Court’s request.” The New York County e-filing protocol required parties who wished to submit exhibits “that cannot practically be e-filed,” such as videos, to file NYSCEF Form EF 21 and consult with the County Clerk about how best to submit such exhibits … . Because defendants failed to comply with these procedures, the video never became part of the record and thus cannot be reviewed by this Court.

Absent the video, the record evidence does not establish that plaintiff was the sole proximate cause of her injuries. Amezquita v RCPI Landmark Props., LLC, 2021 NY Slip Op 02979, First Dept 5-11-21

 

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