Opinion
2007-1543 K C.
Decided October 30, 2008.
Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered July 27, 2007. The order denied defendant's motion for summary judgment.
Order affirmed without costs.
PRESENT: GOLIA, J.P., RIOS and STEINHARDT, JJ.
In this action, plaintiff seeks damages for injuries sustained on October 26, 2000, when a delivery truck hit an exterior wall of her workplace, situated in the City of New York, which caused an interior wall and pipe to strike and injure her. Defendant moved for summary judgment dismissing the complaint based upon plaintiff's failure to show that defendant caused the accident or that it directed, controlled or supervised the work of the truck driver who allegedly caused the accident.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact ( Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Once this showing is made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action, or to demonstrate an acceptable excuse for its failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient ( Zuckerman v City of New York, 49 NY2d 557, 562).
Defendant made a prima facie showing of its entitlement to judgment as a matter of law by submitting, in support of its motion, the deposition testimony of plaintiff in which she identified a delivery truck bearing a name other than defendant's as the one she had observed at the premises; the deposition testimony of defendant's employee, who stated that at the time of the accident, defendant did not make deliveries or pick-ups in New York City; and the affidavit of its account manager, who stated that in 2000, defendant did not make deliveries in New York City but used cartage agents who were not employees of defendant, but rather independent contractors, who used their own drivers to make deliveries, and over whom defendant exercised no control or supervision ( see e.g. Halpin v Hernandez, 51 AD3d 724; Meyer v Martin, 16 AD3d 632).
In opposition to defendant's prima facie showing, plaintiff's counsel submitted, inter alia, an affirmation referring to a telephone conversation he had had with a non-party witness associated with the company whose delivery truck, plaintiff claimed, was responsible for the accident. According to the affirmation, that witness informed plaintiff's counsel that his company had in fact worked as an agent of defendant at the time of the accident, but he was unwilling to provide counsel with an affidavit to that effect.
Hearsay statements may be sufficient to defeat a summary judgment motion "[w]here a party submits affidavits which identify the witnesses, the substance of their testimony, how it is known what that testimony would be and how the witnesses acquired their knowledge . . . provided an acceptable excuse for the failure to tender evidence in admissible form is supplied" ( Landisi v Beacon Community Dev. Agency, 180 AD2d 1000, 1002). In the instant case, plaintiff's counsel's affirmation identified the witness, described the substance of their telephone conversation, and stated that the witness was unwilling to provide him with an affidavit. Since plaintiff offered an acceptable excuse for the failure to submit evidence in admissible form ( see Egleston v Kalamarides, 58 NY2d 685), counsel's affirmation, which contained the hearsay statements of the witness, was sufficient to raise an issue of fact regarding the existence of an agency relationship between the witness' company and defendant, and therefore to defeat defendant's motion for summary judgment. Accordingly, the court below properly denied defendant's motion for summary judgment dismissing the complaint.
Golia, J.P., Rios and Steinhardt, JJ., concur.