Abish v. Cetta
| Decision Date | 13 November 1989 |
| Citation | 155 A.D.2d 495,547 N.Y.S.2d 358 |
| Parties | David ABISH, et al., Appellants, v. William CETTA, Defendant, General Motors Corp., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Barry R. Auerbach, Brooklyn, for appellants.
Morrison & Foerster, New York City (Mark P. Ladner and Valerie T. Rosenson, of counsel), for respondent.
Before BRACKEN, J.P., and KUNZEMAN, KOOPER and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Ain, J.), dated May 5, 1988, which granted the motion of the defendant General Motors Corp. for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On May 14, 1985, at approximately 9:00 P.M., in Oceanside, New York, William Cetta suffered a fatal heart attack while driving a car provided by his employer, General Motors Corp. (hereinafter GM). The vehicle collided with a car driven by the plaintiff David Abish, who sustained personal injuries as a result of the accident.
The plaintiffs' argument that the Supreme Court erred in granting summary judgment must fail. The papers and proof submitted by GM indicates that it is entitled to judgment as a matter of law. In defeating a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact (CPLR 3212[b]. This showing must be made by producing evidentiary proof in admissible form (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718). In the instant case, the plaintiffs had the burden of coming forward with evidentiary proof sufficient to rebut the motion for summary judgment. The plaintiffs failed to do this. Essentially, their answering papers simply recounted the conclusory allegations made in the complaint, stating that the decedent was negligent in traveling at an excessive rate of speed, failing to have the vehicle equipped with proper brakes, and failing to look in the direction in which his vehicle was proceeding.
Likewise, the plaintiffs' contention that a jury should determine whether Mr. Cetta was negligent is without merit. In Beiner v. Nassau Electric R.R. Co., 191 A.D. 371, 181 N.Y.S. 628, where a motorman collapsed, causing his electric streetcar to accelerate and hit the plaintiff who was driving a wagon, this court held that an "act of God exculpates [a] defendant unless [the] defendant's...
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