Jeremy Beauchamp, et al.,                                                     Dated: November 17, 1999

                                          Plaintiffs,                                      Index Number..............14217/94

                -against-                                                                 Motion Date................8/24/99

City of New York, et al.,                                                        Motion Cal. Number..21

                                         Defendants.

The defendant City of New York has moved for summary judgment, or in the alternative to dismiss the complaint for failure to state a cause of action. The motion is granted, and the action as against the City of New York is severed and dismissed.

In this action, the plaintiffs claim that they were assaulted by four unidentified persons, whom they believe to be police officers, in 1993. At his deposition, the plaintiff Beauchamp offered his belief that the officers were members of the New York City Housing Police. At the time of the alleged assault, the New York City Housing Police Department was part of the New York City Housing Authority, and its officers were not employees of the City of New York. The assailants have still not been identified.

On this motion, the defendant City of New York seeks summary judgment on the grounds that the City bears no liability for torts of the Housing Police prior to the merger of that force into the New York City Police Department in 1995. The plaintiffs offer no proof whatever that the assailants were police officers at all, much less that they were New York City Police officers. The only basis for this lawsuit appears to be the plaintiffs= subjective impression and belief that the assailants were Housing Police officers.

Ordinarily, the proponent of a summary judgment motion must offer affirmative proof of its entitlement to judgment as a matter of law (Holtz v Niagara Mohawk Power Corp., 147 AD2d 857, Zuckerman v City of New York, 49 NY2d 557). A failure to make the required showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851). The burden of producing evidentiary facts is greater on the proponent of the motion than on the opponent (Friends of Animals v Assoc. Fur Mfrs., 46 NY2d 1065). The usual rule is that a proponent of summary judgment must affirmatively establish its right to judgment by demonstrating the merit of its claim or defense, and may not prevail merely by pointing to gaps in its adversary's proof (Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614; Pace v IBM Corp., ___ AD2d ___, 670 NYS2d 543).

Here, however, the City's papers demonstrate that the plaintiffs have no proof whatever of the City's liability. In opposition to the motion, the plaintiffs have conceded as much. It would be futile to ask the City to come forward with affirmative proof of lack of liability, since it has no more idea of the identity of the assailants than do the plaintiffs.

The plaintiffs seek to delay summary judgment by seeking the deposition of Detective Panchyn, who investigated the matter, but his report gives no indication of the responsibility of any City police officers for the attack. At most, it indicates that unnamed friends of the plaintiffs blamed another unnamed person, that Panchyn investigated only so far as to establish that this alleged attacker was a Housing Police officer, and that the matter was referred to the Housing Police Internal Affairs Unit for further investigation. Mere hope or speculation that evidence will be uncovered through additional disclosure is not a sufficient basis to invoke CPLR 3212(f) (Sarver v Martyn, 161 AD2d 623; Kennerly v Campbell Chain Co., 133 AD2d 669).

The proof before the court is sufficient to demonstrate that there is no issue of fact regarding the City's liability to place before a jury. Therefore, the City is entitled to summary judgment.

Settle Order.

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J.S.C.