Opinion
13787 Index No. 151419/17 Case No. 2020-04462
05-11-2021
Kim BLACKSTOCK, Plaintiff–Respondent, v. ACCEDE INC. et al., Defendants, BP America Inc. et al., Defendants–Appellants.
Clark & Fox, New York (Megan K. Foster of counsel), for appellants. Sacco & Fillas, L.L.P., Astoria (David Silverman of counsel), for respondent.
Clark & Fox, New York (Megan K. Foster of counsel), for appellants.
Sacco & Fillas, L.L.P., Astoria (David Silverman of counsel), for respondent.
Kern, J.P., Gonza´lez, Scarpulla, Mendez, JJ.
Order, Supreme Court, New York County (Francis A. Kahn, III, J.), entered April 14, 2020, which, inter alia, denied the motion of defendants BP America, Inc., BP Corporation North America Inc., and BP New York LLC (collectively BP) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Supreme Court properly denied BP's motion for summary judgment. BP acknowledged on reply that the affidavit from the Regional Account Executive (RAE) they submitted in support of their motion did not have actual knowledge of the facts regarding the accident due to the fact that he was not the RAE for the gas station where plaintiff alleges he tripped and fell on a raised gas cap on the date of incident (see Lebron v. Napa Realty Corp., 65 A.D.3d 436, 437, 884 N.Y.S.2d 37 [1st Dept. 2009] ; Leslie v. Muidallap Corp., 237 A.D.2d 138, 655 N.Y.S.2d 356 [1st Dept. 1997] ). The court properly rejected the second affidavit from BP's other RAE for the gas station even though she averred that she was the RAE assigned to the property on the day of the accident and that BP never delivered gasoline to the gas station before plaintiff fell, because it was submitted for the first time with BP's reply papers in an attempt to remedy a fundamental deficiency in the moving papers and not to merely address plaintiff's opposition (see Amtrust–NP SFR Venture, LLC v. Vazquez, 140 A.D.3d 541, 541–542, 32 N.Y.S.3d 497 [1st Dept. 2016], lv dismissed 28 N.Y.3d 1102, 45 N.Y.S.3d 363, 68 N.E.3d 90 [2016] ; Doyaga v. Camelot Taxi Inc., 102 A.D.3d 594, 595, 961 N.Y.S.2d 30 [1st Dept. 2013] ).
Moreover, BP's motion for summary judgment was premature since BP had not yet been deposed when they filed the motion (see Burke v. Yankee Stadium, LLC, 146 A.D.3d 720, 721, 47 N.Y.S.3d 261 [1st Dept. 2017] ). The complaint alleges that BP caused or created the alleged defect, and plaintiff satisfied his burden of demonstrating that facts essential to oppose BP's motion on this issue lies within BP's exclusive knowledge or control because the Dealer Supply Agreement submitted by BP in support of their motion states that East Side Gas was granting BP and their contractor carriers 24 hour-per-day access to the gas station's motor fuel storage for the purposes of delivering gasoline. Even if the documents that BP submitted on the motion had sufficed to make a prima facie showing that BP could not have caused or created the alleged defect because they never delivered fuel to the gas station before the accident, plaintiff has an acceptable excuse for not offering any countervailing facts to oppose the motion because BP deprived him of the opportunity to depose the parties who would have knowledge concerning the relevant issues in this action including the negligence, if any, of BP (see Rodriguez v. Architron Envtl. Servs., Inc., 166 A.D.3d 505, 506, 86 N.Y.S.3d 715 [1st Dept. 2018] ).
We have considered the remaining arguments and find them unavailing.