Secondhand Smoke Action Proceeds

When making motions for summary judgment it is critical to submit evidence in admissible form. The City of New York may have just made a costly mistake by forgetting this fundamental of motion practice. In the case of Marquez v City of New York, 2008 NY Slip Op 01059, the plaintiff brought a personal injury action against the City alleging that the secondhand smoke he inhaled while incarcerated in City jails between August 1998 and January 2001 caused his bladder cancer. The City moved for summary judgment arguing that the scientific community has not accepted the proposition that a causal connection exists between bladder cancer and secondhand smoke.  But in doing so, the City only submitted an affirmation by counsel and an expert’s unsworn statement. Thus, the City’s summary judgment motion was denied. Who can tell what will happen now when the case goes before a jury even if the City submits proof that there is no scientific evidence of a connection between secondhand smoke and bladder cancer.

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