YOUNG HEE KIM v. Sung Ja Kim, et al., third-party defendants-respondents. (2008)

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 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776;  Sillman v. Twentieth-Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387).  “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 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Smith v. City of New York, 288 A.D.2d 369, 370, 733 N.Y.S.2d 474;  Sipourene v. County of Nassau, 266 A.D.2d 450, 451, 698 N.Y.S.2d 705).   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 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.