FARRELL v. ISLAND RECREATIONAL INC (2007)

Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered January 13, 2006.   The order denied defendant's motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

In this breach of contract action seeking the recovery of $14,000 in connection with plaintiff's purchase of a swimming pool from defendant, plaintiff claimed that she had selected a certain pool in defendant's store, but that the sales contract was prepared for a different size pool, and the wrong pool was delivered to her home.

 Defendant moved for summary judgment.   As the proponent of such a motion, it was incumbent upon defendant to make a prima facie showing of entitlement to judgment as a matter of law by tendering evidentiary proof in admissible form (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980];  see also Lesocovich v. 180 Madison Ave. Corp., 81 N.Y.2d 982, 985, 599 N.Y.S.2d 526, 615 N.E.2d 1010 [1993] [failure to make such a showing requires denial of the motion, regardless of the sufficiency of opposing papers] ).   Here, defendant submitted evidence which showed that plaintiff signed a sales agreement and two site surveys, all showing that the dimensions of the pool were 12 feet by 24 feet, and not the size claimed by plaintiff.   Other evidence included a separate pool installation contract between plaintiff and a different company, which contract also set forth the same 12 foot by 24 foot dimensions, and a delivery receipt, which also showed said dimensions.   Thus, defendant sustained its burden.

 In opposition, plaintiff offered only her affidavit, which contained unsubstantiated claims.   While plaintiff was not required to prove her claim at this stage of litigation (see Ferrante v. American Lung Assn., 90 N.Y.2d 623, 630, 665 N.Y.S.2d 25, 687 N.E.2d 1308 [1997] ), where “issue finding, rather than issue determination, is the key” to defeating a summary judgment motion (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957];  Paulin v. Needham, 28 A.D.3d 531, 812 N.Y.S.2d 658 [2006] ), the opponent of a motion cannot offer only speculation (Hyman v. Queens County Bancorp, Inc., 3 N.Y.3d 743, 787 N.Y.S.2d 215, 820 N.E.2d 859 [2004] ).   In the present matter, plaintiff surmised that had an outline of the pool been painted on her property, any mistakes would have been corrected prior to installation.   As the foregoing constituted mere speculation by plaintiff, which, at most, alleged a failure by some third party other than defendant, which did not install the pool, plaintiff failed to raise an issue of fact warranting denial of defendant's motion for summary judgment.

It should be noted that the court below incorrectly found that plaintiff raised a triable issue of mutual mistake.   There is no indication of any mistake on defendant's part.   At the most, plaintiff may have raised questions of only her unilateral mistake, which does not offer a basis for recovery under the instant circumstances.