Pizzuto v. Poss

Nov 19, 1993
Appeal No. 1
Versions:198 A.D.2d 910
605 N.Y.S.2d 721
1993 N.Y. App. Div. LEXIS 11598

—Order insofar as appealed from unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting summary judgment to defendants. "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324). Defendants failed to make the required showing. The photographs of the accident scene are not in admissible form and thus, may not be considered in support of the motion (see, Horowitz v Kevah Konner, Inc., 67 AD2d 38, 41). The remaining submissions supporting defendants’ motion, including plaintiffs equivocal testimony at her examination before trial, fail to establish any of their defenses "sufficiently to warrant the court * * * in directing judgment in [their] favor” (CPLR 3212 [b]). Because defendants failed to meet, their initial burden in moving for summary judgment, it is not necessary to consider the sufficiency of plaintiffs opposing papers (see, Ayotte v Gervasio, 81 NY2d 1062, 1063). (Appeal from Order of Supreme Court, Erie County, Whelan, J. —Summary Judgment.) Present — Callahan, J. P., Green, Fallon, Boomer and Davis, JJ.