"While we recognize that a prior [inadmissible,] inconsistent hearsay statement may, under certain circumstances, raise an issue of fact sufficient to defeat summary judgment, those circumstances are not present here" ( Edmonds v Quellman, 277 AD2d 579, 580-581 [citation omitted]). As inadmissible hearsay, Edwards' statements could be considered in opposition to defendants' motion for summary judgment only if there were an acceptable excuse for Plaintiffs' failure to present the evidence in admissible form ( see Zuckerman v City of New York, 49 NY2d 557, 562; Meizinger v Akin, 192 AD2d 1011, 1014, lv denied 82 NY2d 661) or other competent evidence in the record supporting their claim ( see Saint James' Episcopal Church v E.O.C.U.S. Found., 47 AD3d 1058, 1060; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302; Stankowski v Kim, 286 AD2d 282, 283, appeal dismissed 97 NY2d 677; Guzman v L.M.P. Realty Corp., 262 AD2d 99, 100; Egleston v Kalamarides, 89 AD2d 777, 778, mod on other grounds 58 NY2d 682). Here, Plaintiff's could not present the relevant statements in admissible form because Edwards repudiated them.
To this end, plaintiff relies primarily upon the affidavit of Thomas Oram, a qualified forensic pathologist with extensive experience in the area of alcohol metabolism and its effects, gleaned from working with the State Police in the investigation of alcohol-related deaths and his own study of the effects of alcohol on the body. Having reviewed the tissue slides of decedent's liver and other internal organs, and considering the levels of alcohol in her blood (.26%) and urine (.33%) at the time of her death, Oram opined that decedent would have, and did, exhibit certain outward manifestations of drunkenness during the time periods when she was at Jack's and Martel's ( compare, Jones v. Kelly, 201 A.D.2d 536; Meizinger v. Akin, 192 A.D.2d 1011, 1013-1014, lv denied 82 N.Y.2d 661; Terbush v. Buchman, 147 A.D.2d 826, 828). Defendants argue that because the effects of alcohol consumption vary from one individual to another, this opinion is no more than rank speculation and insufficient to raise a question as to whether decedent was visibly intoxicated at the critical times.
Moreover, although Travers testified that she drank half a glass of wine at a friend's house after leaving Legends, the friend denied that Travers consumed any alcohol at her place. Viewing the facts in the light most favorable to the plaintiff, as the nonmoving party (see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 ; Valentin v. Parisio, 119 A.D.3d 854, 855, 989 N.Y.S.2d 621 ), we conclude that Legends' submissions revealed the existence of a triable issue of fact as to whether Travers was visibly intoxicated when she was served alcoholic beverages by Legends' employees (see Morris v. Bianna, Inc., 69 A.D.3d 910, 911, 894 N.Y.S.2d 84 ; Fiegl v. 1695 Ridge Rd. Webster Inn Rest., 162 A.D.2d 1024, 1025, 557 N.Y.S.2d 809 ; Wasserman v. Godoy, 136 A.D.2d 631, 632, 523 N.Y.S.2d 597 ; see also Adamy v. Ziriakus, 92 N.Y.2d at 402–403, 681 N.Y.S.2d 463, 704 N.E.2d 216 ; cf. Meizinger v. Akin, 192 A.D.2d 1011, 1013–1014, 596 N.Y.S.2d 930 ). Since Legends failed to meet its prima facie burden, the Supreme Court should have denied that branch of Legends' motion which was for summary judgment dismissing the cause of action alleging a violation of General Obligations Law § 11–101, without regard to the sufficiency of the plaintiff's opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Collado v. Jiacono, 126 A.D.3d 927, 6 N.Y.S.3d 116 ).
In opposition, plaintiff relied primarily upon the affidavit of a private investigator summarizing the hearsay statements of several Atlantic workers. While there are recognized circumstances where hearsay may be considered in opposition to a summary judgment motion, here no reasonable excuse was proffered for failing to tender evidence in admissible form (see Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1068, 416 N.Y.S.2d 790, 390 N.E.2d 298 [1979] ; Meizinger v. Akin, 192 A.D.2d 1011, 1014, 596 N.Y.S.2d 930 [1993], lv. denied 82 N.Y.2d 661, 605 N.Y.S.2d 6, 625 N.E.2d 591 [1993] ; Landisi v. Beacon Community Dev. Agency, 180 A.D.2d 1000, 1002–1003, 580 N.Y.S.2d 577 [1992] ). Other documentary evidence submitted by plaintiff failed to undermine Sano–Rubins's assertions.
However, Bristol does not claim that he participated in these events or otherwise had personal knowledge of them, and the attached documents indicate that other representatives of plaintiff were involved. Plaintiff proffers no excuse for failure to present this hearsay evidence in admissible form ( see Meizinger v Akin, 192 AD2d 1011, 1014, lv denied 82 NY2d 661). Thus, Bristol's affidavit was without evidentiary value and insufficient to defeat plaintiffs prima facie showing ( see Jock v Landmark Healthcare Facilities, LLC, 62 AD3d 1070, 1072).
While Guerra did assert that plaintiff suffered from a quantifiable permanent limitation of use, such finding was not based upon any objective symptoms found by him but, rather, upon the contents of Cinque's records. Accordingly, plaintiff having failed to present proof in admissible form controverting defendant's entitlement to judgment (see, e.g., Legrow v. Stein, 256 A.D.2d 314, 315; Meizinger v. Akin, 192 A.D.2d 1011, 1014, lv denied 82 N.Y.2d 661), Supreme Court's order must be affirmed. Mercure, J.P., Peters, Carpinello and Mugglin, JJ., concur.
Moreover, Slater's wife, Pallela, the Silver Dollar bartender who served Slater and an off-duty police officer who encountered him at the Silver Dollar further established that Slater was not visibly intoxicated at any time during the one hour and 15 minutes he spent at that bar. Consequently, the burden shifted to plaintiff to submit evidence demonstrating the existence of a material question of fact (see, Meizinger v. Akin, 192 A.D.2d 1011, 1012, lv denied 82 N.Y.2d 661).
At the time of the instant accident, an unlawful sale was defined as the sale of alcohol to a "visibly intoxicated person" (Alcoholic Beverage Control Law § 65, as amended by L 1986, ch 750, § 1). Hence, on a motion for summary judgment, Quintessence bore the initial burden of establishing entitlement to judgment as a matter of law (see, Zuckerman v City of New York, 49 N.Y.2d 557; Meizinger v Akin, 192 A.D.2d 1011, lv denied 82 N.Y.2d 661) and, once satisfied, the burden thereby shifted to plaintiff to produce evidentiary proof in admissible form to establish the existence of a triable issue of fact (see, supra).
It is well settled that a party, in opposition to a motion for summary judgment, must assemble and lay bare affirmative proof in evidentiary form to establish that the matters alleged are real and capable of being established upon a trial (Marine Midland Bank v. Cafferty, 174 A.D.2d 932, 934; see, Zuckerman v. City of New York, 49 N.Y.2d 557, 563-564). We find adequate support in this record to sustain Supreme Court's decision that triable factual issues preclude granting Sweeney's motion (see, Hackstadt v. Hackstadt, 194 A.D.2d 908, 909; Meizinger v. Akin, 192 A.D.2d 1011, 1012, lv denied 82 N.Y.2d 661). We similarly find that Supreme Court properly granted dismissal of the fourth-party complaint against Edger. The record is bereft of any evidence or inference that Sweeney, or anyone else, ever directed, ordered or indicated that the subject adjoining plot should have been plowed.
Because plaintiffs failed to meet their burden of coming forward with proof in evidentiary form to demonstrate the existence of factual issues requiring a trial, summary judgment dismissing the complaint was entirely appropriate (see, Hagan v General Motors Corp., 194 A.D.2d 766, 767-768, lv denied 82 N.Y.2d 658; Kinner v Corning, Inc., 190 A.D.2d 977, 978; G.O.V. Jewelry v United Parcel Serv., 181 A.D.2d 517, 518). We further note that opposition which rests only on discrepancies between opposing papers and relates solely to matters of credibility of conflicting opinions of experts will not suffice (see, Meizinger v Akin, 192 A.D.2d 1011, 1014, lv denied 82 N.Y.2d 661; Pizzaro v City of New York, 188 A.D.2d 591, 594, lv denied 82 N.Y.2d 656). Finally, we find that Supreme Court correctly denied plaintiffs' applications for preliminary injunctive relief in the absence of any demonstration of the probability of success in the lawsuit (see, Aetna Ins. Co. v Capasso, 75 N.Y.2d 860, 862).