Allstate Insurance v. Keil

268 A.D.2d 545, 702 N.Y.S.2d 619, 2000 N.Y. App. Div. LEXIS 954

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2000
• Status: Published

Opinion

—In a subrogation action to recover money paid by the plaintiff for losses in a fire, the defendant appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated June 15, 1999, which granted the plaintiffs motion for summary judgment.

Ordered that the order is affirmed, with costs.

The evidence submitted by the plaintiff in support of its motion for summary judgment was sufficient to establish its prima facie entitlement to judgment as a matter of law. The defendant failed to submit evidence in admissible form to' rebut this prima facie showing (see, Zuckerman v City of New York, 49 NY2d 557).

The alleged statements of the building caretaker contained in the defendant’s opposition papers to the plaintiffs motion constituted inadmissible hearsay (see, Eddy v Tops Friendly Mkts., 59 NY2d 692; Bellafiore v L & K Holding Corp., 244 AD2d 443; Agoglia v Sterling Foster & Co., 237 AD2d 549; Kruck v St. John’s Episcopal Hosp., 228 AD2d 565). While hearsay evidence of statements by an identified declarant has been held sufficient to withstand a motion for summary judgment under certain circumstances (see, Egleston v Kalamarides, 58 NY2d 682; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Landisi v Beacon Community Dev. Agency, 180 AD2d 1000), no such circumstances are present in this case because the defendant has provided no excuse for his failure to tender this evidence in admissible form (see, Schiffren v Kramer, 225 AD2d 757; Egleston v Kalamarides, supra). Mangano, P. J., Altman, Schmidt and Smith, JJ., concur.