Wilkerson v. Buonomo

199 A.D.2d 260, 605 N.Y.S.2d 951, 1993 N.Y. App. Div. LEXIS 11329

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 6, 1993
• Status: Published

Opinion

In an action to recover damages based on legal malpractice and fraud, the plaintiff appeals from an order of the Supreme Court, Westchester County (Ruskin, J.), entered July 9, 1991, which denied her motion for an extension of time for the completion of discovery, and granted the defendants’ cross motion for summary judgment.

Ordered that the order is affirmed, with one bill of costs to the respondents Buonomo and Thaler and Robert Thaler.

To obtain summary judgment the movant must establish the cause of action or defense sufficiently to warrant the court in granting judgment as a matter of law in the movant’s favor, and the movant must do so by tender of evidentiary proof in admissible form (see, Zuckerman v City of New York, 49 NY2d 557, 562). The defendants sufficiently established that they were entitled to summary judgment.

The plaintiff failed to meet her burden of demonstrating the existence of a factual issue requiring a trial of the action or an acceptable excuse for her failure to do so. The plaintiff’s opposing papers consisted almost entirely of conclusory statements or unsubstantiated allegations regarding legal malpractice and fraud, which did not constitute sufficient proof to defeat the motion for summary judgment (see, Zuckerman v City of New York, supra; see also, Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281-282).

We have examined the plaintiffs remaining contentions and find them to be without merit. We have also examined the defendants’ contentions regarding the imposition of sanctions against the appellant and her attorney for bringing this appeal, and find them to be without merit. Sullivan, J. P., Lawrence, O’Brien and Santucci, JJ., concur.