Opinion
November 19, 1993
Appeal from the Supreme Court, Niagara County, Rath, Jr., J.
Present — Green, J.P., Balio, Fallon, Boomer and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: In moving for summary judgment, defendant Aspen Square Management Co., Inc. (Aspen Square) was required to establish its defense "sufficiently to warrant the court as a matter of law in directing judgment" in its favor (CPLR 3212 [b]; see, Iselin Co. v Mann Judd Landau, 71 N.Y.2d 420, 425). Aspen Square met that burden by presenting evidence in admissible form demonstrating that defendant Jeff E. McDonald was not an employee of Aspen Square and that Aspen Square is distinct from defendants McDonald Sons, Inc., and James McDonald, doing business as McDonald Sons. To defeat the motion, plaintiffs were required to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact (see, Iselin Co. v Mann Judd Landau, supra, at 425; Zuckerman v City of New York, 49 N.Y.2d 557, 562). Plaintiffs failed to meet that burden. Plaintiffs presented no evidence controverting Aspen Square's proof that defendant Jeff McDonald worked for an independent contractor hired by Aspen Square merely to do the painting work at Wildwood Acres. Supreme Court properly granted summary judgment to Aspen Square (see, Crage v Kissing Bridge Ski Area, 186 A.D.2d 987, 988, lv denied 81 N.Y.2d 702).