Opinion
August 11, 1997
Appeal from the Surrogate's Court, Nassau County (Radigan, S.).
Ordered that the order is affirmed, with costs payable by the appellant.
The court did not improvidently exercise its discretion by dismissing the appellant's objections since the Surrogate's Court gave the appellant notice that her objections would be dismissed if she failed to comply with an order dated May 8, 1996, directing her to appear for an examination before trial. The record indicates that she deliberately defied the court's order and undertook a course of conduct designed to avoid disclosure.
Furthermore, it is well settled that a party moving for summary judgment must set forth evidentiary facts sufficient to entitle that party to judgment as a matter of law ( see, CPLR 3212 [b]). Only when the initial requirement is met does the burden shift to the opposing party to demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action or to tender an acceptable excuse for his failure to do so ( see, Zuckerman v. City of New York, 49 N.Y.2d 557, 560). Here, the court properly determined that the appellant had not sufficiently established that she was entitled to judgment as a matter of law.
The remaining contentions are without merit.
O'Brien, J.P., Thompson, Pizzuto and Friedmann, JJ., concur.