Opinion
November 10, 1987
Appeal from the Supreme Court, Jefferson County, Inglehart, J.
Present — Dillon, P.J., Denman, Green, Balio and Davis, JJ.
Order unanimously reversed on the law without costs and motion granted. Memorandum: The infant plaintiff was injured by the explosion of a blasting cap which he found in a box containing a toy racing track that his mother had purchased at a church rummage sale. Plaintiff sued, among others, defendant Sally Badour on the theory that she donated the box containing the blasting cap. Special Term erred in denying defendant Badour's motion for summary judgment. In support of her motion, defendant established that there was no blasting cap in the box that she donated; thus she met her burden establishing that plaintiff has no cause of action. Plaintiff failed to present evidence in admissible form from which a jury could conclude that defendant Badour was responsible for the blasting cap which caused the infant plaintiff's injuries (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Plaintiff's submission of a hearsay affidavit by counsel is insufficient (see, Eddy v. Tops Friendly Mkts., 91 A.D.2d 1203, affd 59 N.Y.2d 692; Poluliah v. Fidelity High Income Fund, 102 A.D.2d 720). Accordingly, defendant Badour's motion for summary judgment should have been granted (see, Lomnitz v. Town of Woodbury, 81 A.D.2d 828, 829; Donadio v. Crouse-Irving Mem. Hosp., 75 A.D.2d 715; Blake v. Gardino, 35 A.D.2d 1022, affd 29 N.Y.2d 876).