Richter v. Herman

240 A.D.2d 556, 659 N.Y.S.2d 983, 1997 N.Y. App. Div. LEXIS 6884

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 16, 1997
• Status: Published

Opinion

In an action to recover damages for personal injuries arising out of an automobile accident, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Nassau County (O’Brien, J.), dated July 23, 1996, which granted the third-party defendant’s motion for summary judgment dismissing the third-party complaint.

Ordered that the order is affirmed, with costs.

By submitting evidence demonstrating that he was not involved in the automobile accident which is the subject of this action, the third-party defendant established a prima facie right to judgment as a matter of law. The defendants third-party plaintiffs failed to submit evidence raising a genuine issue of fact (see, Zuckerman v City of New York, 49 NY2d 557, 562), and, instead, relied upon evidence that was based on speculation, conjecture, and surmise. Accordingly, the Supreme Court properly granted the third-party defendant’s motion (see, Miller v JWP Forest Elec. Corp., 232 AD2d 615; Abbenante v Tyree Co., 228 AD2d 529; All Indus. Real Estate Corp. v North-gate Plaza, 186 AD2d 103). Miller, J. P., Copertino, Sullivan and Altman, JJ., concur.