MORALES PEREZ v. Jerome C. Taylor, et al., Appellants. (2000)

In an action to recover damages for personal injuries, etc., the defendants Jerome C. Taylor and Veronica Taylor appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated October 7, 1999, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendant is severed.

The appellants established a prima facie case of their entitlement to summary judgment dismissing the complaint and all cross claims insofar as asserted against them.   The burden then shifted to the respondents to produce evidentiary proof in admissible form sufficient to raise a material issue of fact requiring a trial (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Hilltop Nyack Corp. v. TRMI Holdings, 272 A.D.2d 521, 708 N.Y.S.2d 138).   The respondents failed to meet their burden.   They submitted and relied upon unauthenticated photographs which did not constitute evidentiary proof in admissible form (see, Charlip v. City of New York, 249 A.D.2d 432, 671 N.Y.S.2d 502;  Truesdell v. Rite Aid of N.Y., 228 A.D.2d 922, 644 N.Y.S.2d 428;  Gutierrez v. Cohen, 227 A.D.2d 447, 643 N.Y.S.2d 121;  Williams v. New York City Tr. Auth., 207 A.D.2d 444, 615 N.Y.S.2d 754).   Therefore, the appellants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them should have been granted.

MEMORANDUM BY THE COURT.