Opinion
March 6, 1984
Appeal from the Supreme Court, Erie County, Sedita, J.
Present — Dillon, P.J., Doerr, Denman, O'Donnell and Schnepp, JJ.
Order unanimously reversed, without costs, and motion granted. Memorandum: At the time of the events alleged in the complaint, plaintiff and defendant Murphy were married but were living apart, and defendants Kenner, Vito and Zenosky were private investigators. The complaint alleges multiple causes of action arising from the entry into plaintiff's trailer home by all of the individual defendants on the early morning of February 10, 1980. ¶ Defendant Kenner moved for summary judgment dismissing the complaint as to him, and demonstrated by evidentiary proof in admissible form that he was not present during the events alleged in the complaint. In response to the motion plaintiff not only failed to refute that showing, but also failed to demonstrate an acceptable excuse for her failure to have done so (see Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068). ¶ Plaintiff argues alternatively that defendant Kenner should not be granted summary judgment because he may have planned the break-in of plaintiff's home. That argument is wholly speculative and without basis in the record. Both the complaint and the bill of particulars assert that defendant Kenner was an actual participant in the commission of the acts giving rise to plaintiff's causes of action, and plaintiff has offered no evidentiary proof upon which liability might otherwise be assessed against Kenner personally (see Alvord Swift v Muller Constr. Co., 46 N.Y.2d 276).