Davern v. City of New York

287 A.D.2d 679, 732 N.Y.S.2d 180, 2001 N.Y. App. Div. LEXIS 10128

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant Grace Contracting Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated May 30, 2000, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

On a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form sufficient to eliminate any material issues of fact from the case (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see, Winegrad v New York Univ. Med. Ctr., supra; Gstalder v State of New York, 240 AD2d 541).

The proof submitted by the defendant Grace Contracting Corporation failed to establish as a matter of law that it was not performing work at the accident site at or near the time of the accident. Krausman, J. P., McGinity, H. Miller and Smith, JJ., concur.