Opinion
November 19, 1993
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Denman, P.J., Green, Balio, Fallon and Boomer, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: In moving for summary judgment, defendants Maple City Disposal and Steven Smith, individually and doing business as Maple City Disposal (defendants) were required to establish their defense "sufficiently to warrant the court as a matter of law in directing judgment" in their favor (CPLR 3212 [b]; see, Iselin Co. v Mann Judd Landau, 71 N.Y.2d 420, 425). Defendants met that burden by submitting evidence in admissible form demonstrating that defendant William D. Owens was not acting in the scope of his employment at the time of the accident (see, Lundberg v State of New York, 25 N.Y.2d 467, 470, rearg denied 26 N.Y.2d 883; Vangersky v Moogan, 128 A.D.2d 699; Ehlenfield v State of New York, 62 A.D.2d 1151, lv denied 44 N.Y.2d 649). 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.
We modify the order, therefore, by granting defendants' motion for summary judgment. That part of the order denying defendants' application for sanctions against plaintiffs and their counsel is affirmed.