Russo v. People's Home Funding Corp.

212 A.D.2d 588, 622 N.Y.S.2d 571, 1995 N.Y. App. Div. LEXIS 1541

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 1995
• Status: Published

Opinion

—In an action to recover damages for fraud, breach of contract, and legal malpractice, the third-party defendants appeal from an order of the Supreme Court, Westchester County (Coppola, J.), entered July 15, 1993, which denied their motion for summary judgment dismissing the third-party complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the third-party complaint is dismissed.

The third-party complaint alleged that the third-party defendants had prepared a real estate appraisal in a negligent manner. In support of their motion for summary judgment, the third-party defendants submitted evidentiary proof in admissible form, including, inter alia, a specific and factual affidavit from the third-party defendant LeBlanc, the actual appraiser, which made "a prima facie showing of entitlement to judgment by eliminating the material issues of fact from the case” (Kelly v St. Peter’s Hospice, 160 AD2d 1123, 1124; Zuckerman v City of New York, 49 NY2d 557, 562). It was then incumbent upon the opposing parties to produce evidentiary proof in admissible form demonstrating that there existed a genuine triable issue of fact (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). The third-party plaintiff and the plaintiff utterly failed in this regard (see, Pappalardo v Meisel, 112 AD2d 277, 278). Accordingly, summary judgment must be granted to the third-party defendants dismissing the third-party complaint. Sullivan, J. P., Rosenblatt, Joy and Altman, JJ., concur.