Safier v. Saggio Restaurant Inc.

Order, Supreme Court, Bronx County (Donna M. Mills, J.), entered December 13, 2016, which denied defendant Tri-State Biodiesel, LLC’s motion for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Defendant Tri-State Biodiesel, which collects used cooking oil from restaurants, established prima facie that it did not cause the large slick of cooking oil and/or grease to be on the road where plaintiff slipped and fell riding his bicycle. TriState submitted an affidavit by its general manager saying that he had searched its records and that the records indicated that the company had not collected oil from its codefendants, restaurant operators and the owners of the building in which the restaurants are located, since January 25, 2013, about 16 months before the accident happened on the road adjacent to the building (see Piccinich v New York Stock Exch., 257 AD2d 438 , 439 [1st Dept 1999]). Tri-State also submitted deposition testimony by its codefendants admitting either that they had never been serviced by it or that they had had no dealing with it for more than a year before the accident happened (see Tower Ins. Co. of N.Y. v Khan, 93 AD3d 618 , 619 [1st Dept 2012]). These unsigned transcripts were properly before the motion court, because the deponents were served with notices to execute more than 60 days before Tri-State moved for summary judgment, every transcript was certified by a reporter, and neither plaintiff nor co-defendants challenged the accuracy of the testimony (see CPLR 3116 [a]; Franco v Rolling Frito-Lay Sales, Ltd., 103 AD3d 543 [1st Dept 2013]).

Concur — Acosta, P.J., Richter, Webber and Kahn, JJ.