Opinion
November 19, 1993
Appeal from the Supreme Court, Erie County, Whelan, J.
Present — Callahan, J.P., Green, Fallon, Boomer and Davis, JJ.
Order insofar as appealed from unanimously reversed on the law with costs, motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting summary judgment to defendants. "[T]he 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" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). Defendants failed to make the required showing. The photographs of the accident scene are not in admissible form and thus, may not be considered in support of the motion (see, Horowitz v Kevah Konner, Inc., 67 A.D.2d 38, 41). The remaining submissions supporting defendants' motion, including plaintiff's equivocal testimony at her examination before trial, fail to establish any of their defenses "sufficiently to warrant the court * * * in directing judgment in [their] favor" (CPLR 3212 [b]). Because defendants failed to meet their initial burden in moving for summary judgment, it is not necessary to consider the sufficiency of plaintiff's opposing papers (see, Ayotte v Gervasio, 81 N.Y.2d 1062, 1063).