Vaadi v. E. I. Dupont de Nemours & Co.

134 A.D.2d 831, 521 N.Y.S.2d 586, 1987 N.Y. App. Div. LEXIS 51002

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1987
• Status: Published

Opinion

— Order unanimously reversed on the law without costs and motion granted. Memorandum: The infant plaintiff was injured by the explosion of a blasting cap which he found in a box containing a toy racing track that his mother had purchased at a church rummage sale. Plaintiff sued, among others, defendant Sally Badour on the theory that she donated the box containing the blasting cap. Special Term erred in denying defendant Badour’s motion for summary judgment. In support of her motion, defendant established that there was no blasting cap in the box that she donated; thus she met her burden establishing that plaintiff has no cause of action. Plaintiff failed to present evidence in admissible form from which a jury could conclude that defendant Badour was responsible for the blasting cap which caused the infant plaintiffs injuries (see, Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiffs submission of a hearsay affidavit by counsel is insufficient (see, Eddy v Tops Friendly Mkts., 91 AD2d 1203, affd 59 NY2d 692; Poluliah v Fidelity High Income Fund, 102 AD2d 720). Accordingly, defendant Badour’s motion for summary judgment should have been granted (see, Lomnitz v Town of Woodbury, 81 AD2d 828, 829; Donadío v Crouse-Irving Mem. Hosp., 75 AD2d 715; Blake v Gardino, 35 AD2d 1022, affd 29 NY2d 876). (Appeal from order of Supreme Court, Jefferson County, Inglehart, J. — summary judgment.) Present — Dillon, P. J., Denman, Green, Balio and Davis, JJ.