Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), dated December 14, 2006. The order, insofar as appealed

from as limited by the brief, denied the motion by defendants Gene Harris, All Island Trucking Leasing Corp. and P.A.I. Trucking, Inc. for summary judgment dismissing the complaint and all causes of action and any cross claims against them. [*2]

Appeal by P.A.I. Trucking, Inc. dismissed as it is not aggrieved by the order (see CPLR 5511).

Order, insofar as appealed from, reversed without costs and that branch of the motion by defendants Gene Harris and All Island Trucking Leasing Corp. seeking summary judgment dismissing the complaint and all causes of action and any cross claims against them granted.

This subrogation action by plaintiff to recover for payments made under the uninsured provisions of an insurance policy arises out of an accident which occurred on February 6, 2002, in which plaintiff's subrogors, Marjorie Legene and Guy Jean, were allegedly injured when the car in which they were riding was involved in a motor vehicle accident with a truck owned by defendant All Island Trucking Leasing Corp. and operated by defendant Gene Harris, who was employed by defendant P.A.I. Trucking, Inc. Defendants Gene Harris, All Island Trucking Leasing Corp. and P.A.I. Trucking, Inc. moved, inter alia, for summary judgment on the issue of liability, claiming that they were not responsible for the accident. In support of the motion, they submitted the affidavit of Mr. Harris, who averred that the accident was caused by Ms. Legene when the vehicle she was operating hit the side of his truck while she was attempting to change lanes, in violation of Vehicle and Traffic Law § 1128 (a). Since defendants established their entitlement to summary judgment by offering evidence to demonstrate that they were not at fault for the accident, the burden shifted to plaintiff to demonstrate a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Although the court below found otherwise, plaintiff failed to produce evidentiary proof in admissible form sufficient to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The affidavit of plaintiff's subrogation supervisor was of no probative value since she did not have personal knowledge of the underlying facts of the accident, and she failed to annex the transcripts of the examinations under oath conducted of Ms. Legene and Mr. Jean upon which she relied. Furthermore, the unsworn statements in the MV-104 accident report, which plaintiff also submitted in opposition to the motion, constituted hearsay and were not sufficient to raise a triable issue of fact (see Johnson v Phillips, 261 AD2d 269 [1999]; Rue v Stokes, 191 AD2d 245 [1993]).

Accordingly, the court below erred in denying the branch of the motion by defendants Gene Harris and All Island Trucking Leasing Corp. which sought summary judgment. We note that P.A.I. Trucking, Inc. is not aggrieved by the subject order dated December 14, 2006, which, inter alia, denied its motion for summary judgment, since the action against it was dismissed by judgment entered December 8, 2006.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: July 10, 2008