Siagkris v. K & E Mechanical, Inc.

248 A.D.2d 458, 669 N.Y.S.2d 375, 1998 N.Y. App. Div. LEXIS 2296

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 9, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Lisa, J.), dated January 7, 1997, as (1) granted the cross motion by the defendant ABBA Plumbing Corp. for summary judgment dismissing the complaint insofar as asserted against it, and (2) denied the plaintiff’s cross motion to consolidate this action with an action entitled Peter Siagkris v ABBA Plumbing Corp., pending in the Supreme Court, Kings County, under Index No. 5327/96.

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

The plaintiff alleged that he was injured when he fell after slipping on a wet floor. The plaintiff contended that the condition was caused by the defendant ABBA Plumbing Corp. (hereinafter ABBA), the company purportedly performing plumbing repair work in the kitchen of the restaurant where the plaintiff worked. Since ABBA presented invoices and other paperwork which documented that it did not perform any repairs on the day of the accident, but rather that the work was performed one month after the plaintiff was injured, ABBA demonstrated its entitlement to judgment as a matter of law, and the burden shifted to the plaintiff to demonstrate by admissible evidence the existence of a factual issue (see, CPLR 3212; Zuckerman v City of New York, 49 NY2d 557, 560). The submission of a hearsay affirmation by the plaintiffs counsel was inadequate to defeat the summary judgment motion inasmuch as it did not constitute proof in admissible form (see, Zuckerman v City of New York, supra, at 560; see also, Key Bank v Lisi, 225 AD2d 669).

The plaintiffs remaining contentions are without merit.

Miller, J. P., Altman, Krausman and Luciano, JJ., concur.