Opinion
2007-547 N C.
Decided November 26, 2008.
Appeal from an order of the District Court of Nassau County, First District (Andrew M. Engel, J.), dated February 16, 2007. The order, insofar as appealed from, granted the cross motion of defendants GEICO Insurance Agency and Dominick Abbriano for summary judgment dismissing the complaint as against them.
Order, insofar as appealed from, affirmed without costs.
PRESENT: RUDOLPH, P.J, McCABE and MOLIA, JJ.
Plaintiff brought this action against defendants Auto Repair of Great Neck, N.Y., Inc. (Auto Repair), GEICO Insurance Agency (GEICO) and Dominick Abbriano (Abbriano) to recover damages allegedly sustained due to the improper repair of his vehicle following a motor vehicle accident. He alleged, inter alia, that defendant Auto Repair was negligent in failing to properly perform the repairs to his vehicle, that defendant Abbriano, GEICO's claims adjuster, breached a duty of care to him in failing to provide a proper initial repair estimate, and that GEICO breached its contract with him, which resulted in the allegedly negligent repairs and in failing to guaranty said repairs. Auto Repair moved for summary judgment dismissing the complaint, and GEICO and Abbriano cross-moved for the same relief. Insofar as is relevant to this appeal, the District Court granted the cross motion for summary judgment of GEICO and Abbriano, dismissing plaintiff's complaint as against them. This appeal by plaintiff ensued.
Plaintiff's contention that the District Court erred in granting partial summary judgment to defendant Auto Repair is not properly before this court since plaintiff's notice of appeal is limited to "the part of the order granting Summary Judgement to Defendants Geico Insurance Agency and Dominick Abbriano" ( see Dingle v Pergament Home Ctrs., 141 AD2d 798).
We reject plaintiff's contention that the District Court erred in granting summary judgment to defendants GEICO and Abbriano. 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, 853; Zuckerman v City of New York, 49 NY2d 557, 562). 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 ( Alvarez v Prospect Hosp., 68 NY2d 320; Zuckerman, 49 NY2d at 562).
While defendants GEICO and Abbriano demonstrated their entitlement to summary judgment by submitting the affidavit of Abbriano as well as the repair estimates, plaintiff failed to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action as to said defendants. Other than his own conclusory affidavit, plaintiff failed to provide any evidence showing that defendant Abbriano owed him any duty, that Abbriano's repair estimates were improperly performed, or that plaintiff suffered damages as a result of the allegedly improperly performed repair estimates. Similarly, with respect to defendant GEICO, plaintiff failed to show that GEICO breached its contract of insurance with plaintiff or that it breached any warranty with respect to the replaced parts. Accordingly, the court below did not err in granting GEICO's and Abbriano's cross motion, and the order of the court below, insofar as appealed from, is affirmed.
Rudolph, P.J, McCabe and Molia, JJ., concur.