Fabbricatore v. Lindenhurst Union Free School District

259 A.D.2d 659, 686 N.Y.S.2d 822

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 22, 1999
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant Lindenhurst Union Free School District appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated August 28, 1996, which denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with costs.

On a motion for summary judgment, the movant initially bears the burden of setting forth evidentiary facts sufficient to entitle that party to judgment as a matter of law. Only then does the burden shift to the opposing party to come forward with proof (see, Piccolo v De Carlo, 90 AD2d 609). Where, as here, the moving papers are insufficient, there is no necessity for an opposing party to respond with evidentiary proof (see, Greenberg v Manlon Realty, 43 AD2d 968; Holtz v Niagara Mohawk Power Corp., 147 AD2d 857). Since the appellant did not meet the initial burden of setting forth evidentiary facts sufficient to establish entitlement to judgment as a matter of law, the Supreme Court properly denied the cross motion (see, Coley v Michelin Tire Corp., 99 AD2d 795). S. Miller, J. P., Florio, McGinity and Luciano, JJ., concur.