Kaluga v. Korytowsky

269 A.D.2d 566, 704 N.Y.S.2d 507, 2000 N.Y. App. Div. LEXIS 2134

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jones, J.), dated July 19, 1999, as denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, 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 sufficient to raise a triable issue of fact (see, Fabbricatore v Lindenhurst Union Free School Dist., 259 AD2d 660).

The defendants’ expert submissions offered conclusory opinions without any factual support. Where an expert states his conclusion without reliance on any facts or data, his testimony should be given no probative force whatsoever (see, Amatulli v Delhi Constr. Corp., 77 NY2d 525, 533). Since the defendants’ moving papers were insufficient to entitle them to summary judgment, there was no necessity for the plaintiffs to respond with evidentiary proof (see, Fabbricatore v Lindenhurst Union Free School Dist., supra). Accordingly, the Supreme Court did not err in denying the defendants’ motion for summary judgment. Mangano, P. J., Santucci, Krausman and Florio, JJ., concur.