Opinion
April 29, 1996
Appeal from the Supreme Court, Suffolk County (D'Emilio, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted the branch of the respondent's motion which was for summary judgment dismissing the second cause of action of the third-party complaint. We note that the only issues raised on the appeal concern the second cause of action, in which the appellant alleged that the respondent negligently instructed an unqualified employee to check on her status. The first cause of action, sounding in medical malpractice, was withdrawn, and the dismissal of the third and fourth causes of action for contribution and indemnification is not contested on appeal.
We agree with the Supreme Court that the evidence submitted by the respondent on her motion for summary judgment was sufficient to defeat the claims made in the second cause of action, and the appellant failed to present proof in admissible form sufficient to establish a triable issue of fact ( see, Zuckerman v. City of New York, 49 N.Y.2d 557). The affirmation of the appellant's attorney was without evidentiary value (see, Zuckerman v. City of New York, supra), and the other proof offered failed to establish that the subject employee was acting under the respondent's instructions. Accordingly, the second cause of action was properly dismissed.
We have considered the appellant's remaining contention and find it to be without merit. Miller, J.P., O'Brien, Copertino and Pizzuto, JJ., concur.