Opinion
Argued October 2, 2001.
October 29, 2001.
In an action to recover damages for personal injuries, the defendant Grace Contracting Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated May 30, 2000, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
Jacobowitz, Garfinkel Lesman, New York, N.Y. (Fiedelman McGaw [Dawn C. DeSimone] of counsel), for appellant.
Michael D. Hess, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Alan G. Krams of counsel), for defendant-respondent City of New York.
Isserlis Sullivan, Bethpage, N.Y. (Lawrence R. Miles of counsel), for defendants-respondents Staten Island Car Service and Craig S. Kramer.
Before: GABRIEL M. KRAUSMAN, J.P., LEO F. McGINITY, HOWARD MILLER, NANCY E. SMITH, JJ.
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. Center, 64 N.Y.2d 851; Zuckerman v. City of New York, 49 N.Y.2d 557; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 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. Center, supra; Gstalder v. State of New York, 240 A.D.2d 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.
KRAUSMAN, J.P., McGINITY, H. MILLER and SMITH, JJ., concur.