Young Hee Kim v Handelsman
2008 NY Slip Op 01142 [48 AD3d 459]
February 5, 2008
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 16, 2008


Young Hee Kim, Plaintiff,
v
Zelda Handelsman, Defendant and Third-Party Plaintiff-Appellant. Sung Ja Kim et al., Third-Party Defendants-Respondents.

[*1] Robert P. Tusa, (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for defendant third-party plaintiff-appellant.

Buratti, Kaplan, McCarthy & McCarthy, East Elmhurst, N.Y. (Thomas L. Chiofolo of counsel), for third-party defendants-respondents.

In an action to recover damages for personal injuries, the defendant third-party plaintiff, Zelda Handelsman, appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated April 27, 2007, which granted the third-party defendants' motion for summary judgment dismissing the third-party complaint.

Ordered that the order is reversed, on the law, with costs, and the third-party defendants' motion for summary judgment dismissing the third-party complaint is denied.

It is well established that on a motion for summary judgment, the moving party has the burden of establishing prima facie entitlement to judgment as a matter of law by coming forward with evidentiary proof, in admissible form, demonstrating the absence of any triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Smith v City of New York, 288 AD2d 369, 370 [2001]; Sipourene v County of Nassau, 266 AD2d 450, 451 [1999]). Here, the third-party defendants failed to meet their burden. The deposition testimony of the two drivers involved in the subject automobile accident, submitted in support of the motion, raised [*2]numerous triable issues of fact as to the happening of the accident. Accordingly, the Supreme Court erred in granting the motion for summary judgment dismissing the third-party complaint. Mastro, J.P., Santucci, Dillon and Angiolillo, JJ., concur.