Denicker v. Rohan

236 A.D.2d 359, 654 N.Y.S.2d 329, 1997 N.Y. App. Div. LEXIS 1022

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1997
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant Eva Rohan appeals from an order of the Supreme Court, Queens County (Lonschein, J.), dated November 20, 1995, which granted the motion by the defendants William and Francine Schembeck for summary judgment dismissing the amended complaint and the cross claim insofar as asserted against them.

Ordered that the appeal from so much of the order as granted the branch of the motion of the defendants William and Francine Schembeck which was to dismiss the amended complaint insofar as asserted against them is dismissed as the appellant is not aggrieved thereby (CPLR 5511); and it is further,

Ordered that the order is reversed insofar as reviewed, without costs or disbursements, that branch of the motion which was for summary judgment dismissing the appellant’s cross claim asserted against the defendants William and Francine Schembeck is denied, and the cross claim is reinstated.

To obtain summary judgment, the movant 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; Zuckerman v City of New York, 49 NY2d 557). The defendants William and Francine Schembeck failed to meet this standard since the documentary evidence submitted in support of their motion, specifically, a fire marshal’s report, was not in admissible form. While summary judgment would have been appropriate had the documentary evidence been properly certified, it was error to grant the motion on this record. Sullivan, J. P., Krausman, Florio and McGinity, JJ., concur.