Jones v. Brooklyn Union Gas Corp.

133 A.D.2d 262, 518 N.Y.S.2d 1019, 1987 N.Y. App. Div. LEXIS 49751

Opinion

In an action, inter alia, to recover damages for trespass, the plaintiffs appeal from an order of the Supreme Court, Kings County (Hurowitz, J.), dated May 29, 1986, which, inter alia, granted a motion by the defendant for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

In support of its motion for summary judgment dismissing the complaint, the defendant sustained its initial burden of coming forward with admissible evidence to establish prima facie its entitlement to judgment as a matter of law (see, GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967; Zuckerman v City of New York, 49 NY2d 557, 562; Hellyer v Law Capitol, 124 AD2d 782). Therefore, the burden shifted to the plaintiffs, and it was incumbent upon them to tender evidence in admissible form to establish the existence of a triable issue of fact (see, Vermette v Kenworth Truck Co., 68 NY2d 714, 717; GTF Mktg. v Colonial Aluminum Sales, supra, at 968; Hellyer v Law Capitol, supra, at 783). However, the proof presented by the plaintiffs in this case was patently insufficient to defeat the motion for summary judgment (see, Vermette v Kenworth Truck Co., supra; Hellyer v Law Capitol, supra). Thompson, J. P., Bracken, Lawrence and Spatt, JJ., concur.