Dix v. Pines Hotel, Inc.

188 A.D.2d 1007, 592 N.Y.S.2d 993, 1992 N.Y. App. Div. LEXIS 14836

Opinion

Order unanimously reversed on the law with costs and motion denied. Memorandum: The court erred by granting plaintiffs motion for summary judgment. On a motion for summary judgment, the proponent of the motion must set forth evidentiary proof, in admissible form, eliminating any material issue of fact from the suit (Zuckerman v City of New York, 49 NY2d 557; Merkley v Palmyra-Macedon Cent. School Dist., 130 AD2d 937). The evidence should be viewed in the light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 AD2d 976). Plaintiff failed to submit any proof in admissible form entitling her to summary judgment. The report prepared by the Department of Health is not a business record (see, CPLR 4518 [a]), was not certified or authenticated (see, CPLR 4518 [c]), and therefore does not constitute evidentiary proof in admissible form. Because the

report was the only proof submitted by plaintiff regarding the proximate cause of her illness, she failed to sustain her burden. Additionally, even if we were to consider the report as providing some evidence of defendant’s breach of duty and the proximate cause of plaintiff’s illness, varying inferences may be drawn from the report, rendering summary judgment inappropriate (see, Anders v Segall, 124 AD2d 1029). (Appeal from Order of Supreme Court, Orleans County, Whelan, J.— Summary Judgment.) Present — Denman, P. J., Pine, Balio, Fallon and Davis, JJ.