Olan v. Farrell Lines Inc.

Decision Date25 April 1985
Citation479 N.E.2d 229,64 N.Y.2d 1092,105 AD2d 653,489 N.Y.S.2d 884
Parties, 479 N.E.2d 229 Ismael OLAN, Appellant, v. FARRELL LINES INCORPORATED, Respondent.
CourtNew York Court of Appeals Court of Appeals
Paul C. Matthews and Morgan Kennedy, New York City, for appellant.
OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in its memorandum (105 A.D.2d 653, 481 N.Y.S.2d 370). We add only that, before considering whether plaintiff put forth sufficient proof to defeat defendant's motion for summary judgment, the issue of whether defendant established its defense must first be addressed (CPLR 3212 Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). In this instance, defendant put forth sufficient evidentiary proof in admissible form, and plaintiff raised no issue of material fact to support its claim of negligence and unseaworthiness. The fact that defendant's supporting proof was placed before the court by way of an attorney's affidavit annexing plaintiff's deposition testimony and other proof, rather than affidavits of fact on personal knowledge, does not defeat defendant's right to summary judgment (see, Gaeta v. New York News, 62 N.Y.2d 340, 350, 477 N.Y.S.2d 82, 465 N.E.2d 802; Zuckerman v. City of New York, supra, p. 563, 427 N.Y.S.2d 595, 404 N.E.2d 718).

WACHTLER, C.J., and JASEN, MEYER, SIMONS and KAYE, JJ., concur.

ALEXANDER, J., taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.

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