Rosen v. Intermedics, Inc.

Appellate Division of the Supreme Court of New York

Rosen v. Intermedics, Inc.

203 A.D.2d 271, 612 N.Y.S.2d 879, 1994 N.Y. App. Div. LEXIS 3245

Appellate Division of the Supreme Court of the State of New York·Decided April 4, 1994·Published·Cited by 1 cases

Opinion

—In an action to recover damages for personal injuries, etc., the defendant Medtronic, Inc., appeals from so much of an order of the Supreme Court, Nassau County (McCabe, J.), dated May 13, 1992, as denied that branch of its motion which was for summary judgment dismissing the first cause of action insofar as it is asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The affidavit of the appellant’s expert, which was conclusory, was insufficient to warrant summary judgment (see, Coley v Michelin Tire Corp., 88 AD2d 651). In a motion for summary judgment, the moving party has the burden of setting forth evidentiary facts to establish his cause sufficiently to entitle him to judgment as a matter of law; anything less requires a denial of the motion even where the opposing papers are insufficient (see, Coley v Michelin Tire Corp., 99 AD2d 795, 796; Yates v Dow Chem. Co., 68 AD2d 907). Mangano, P. J., Balletta, O’Brien, Hart and Florio, JJ., concur.

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—In an action to recover damages for personal injuries, etc., the defendant Medtronic, Inc., appeals from so much of an order of the Supreme Court, Nassau County (McCabe, J.), dated May 13, 1992, as denied that branch of its motion which was for summary judgment dismissing the first cause of action insofar as it is asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The affidavit of the appellant’s expert, which was conclusory, was insufficient to warrant summary judgment (see, Coley v Michelin Tire Corp., 88 AD2d 651). In a motion for summary judgment, the moving party has the burden of setting forth evidentiary facts to establish his cause sufficiently to entitle him to judgment as a matter of law; anything less requires a denial of the motion even where the opposing papers are insufficient (see, Coley v Michelin Tire Corp., 99 AD2d 795, 796; Yates v Dow Chem. Co., 68 AD2d 907). Mangano, P. J., Balletta, O’Brien, Hart and Florio, JJ., concur.

Rosen v. Intermedics, Inc., 203 A.D.2d 271, 612 N.Y.S.2d 879, 1994 N.Y. App. Div. LEXIS 3245 (N.Y. Ct. App. 1994).

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