Lo Cicero v. Frisian

150 A.D.2d 761, 542 N.Y.S.2d 210, 1989 N.Y. App. Div. LEXIS 7242

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 1989
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., sustained in an automobile accident, the plaintiff Susan Lo Cicero appeals from an order of the Supreme Court, Suffolk County (Saladino, J.), entered December 8, 1987, which denied her motion for summary judgment dismissing the defendants’ counterclaims against her.

Ordered that the order is affirmed, with costs to the respondent Frisian.

We agree with the Supreme Court, Suffolk County, that the plaintiff Susan Lo Cicero’s papers were inadequate to warrant granting summary judgment to her dismissing the counterclaims interposed against her by the defendants. She failed to submit evidentiary proof in admissible form, since the transcripts of the examinations before trial of herself and her coplaintiff were unsigned and unsworn (see, Horowitz v Kevah Konner, Inc., 67 AD2d 38, 41; Pathmark Graphics v J. M. Fields, Inc., 53 AD2d 531). Although a duly executed transcript of the defendant Irwin Goldschlag’s examination before trial was submitted, that testimony raised triable issues of fact with respect to the plaintiff Susan Lo Cicero’s possible negligence in the operation of her motor vehicle (cf., Andre v Pomeroy, 35 NY2d 361). Brown, J. P., Lawrence, Kunzeman and Hooper, JJ., concur.