Davern v. City of New York

• Decision Date: 29 October 2001
• Citation: 732 N.Y.S.2d 180,287 A.D.2d 679
• Parties: PEGGY A. DAVERN, Respondent,<BR>v.<BR>CITY OF NEW YORK et al., Respondents, and GRACE CONTRACTING CORPORATION, Appellant.
• Court: New York Supreme Court — Appellate Division

287 A.D.2d 679

732 N.Y.S.2d 180

PEGGY A. DAVERN, Respondent,

v.CITY OF NEW YORK et al., Respondents, and GRACE CONTRACTING CORPORATION, Appellant.

Decided October 29, 2001.

Krausman, J. P., McGinity, H. Miller and Smith, JJ., concur.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

On a motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form sufficient to eliminate any material issues of fact from the case (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see, Winegrad v New York Univ. Med. Ctr., supra; Gstalder v State of New York, 240 AD2d 541).

The proof submitted by the defendant Grace Contracting Corporation failed to establish as a matter of law that it was not performing work at the accident site at or near the time of the accident.