THOMAS v. WOODMERE HEALTH CARE CENTER INC (1999)

In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from (1) so much of an order and judgment (one paper) of the Supreme Court, Queens County (Lisa, J.), dated November 13, 1997, as granted the motion of the defendant Woodmere Health Care Center, Inc., for summary judgment and dismissed the complaint insofar as asserted against it, and (2) an order of the same court, dated April 3, 1998, which denied her motion for reargument.

ORDERED that the appeal from the order dated April 3, 1998, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the order and judgment dated November 13, 1997, is affirmed insofar as appealed from;  and it is further,

ORDERED that the respondent is awarded one bill of costs.

The decedent, whose estate commenced the instant action, was employed at the respondent Woodmere Health Care Center, Inc., when her former boyfriend entered the premises, killed the decedent, and then killed himself.   The respondent met its initial burden of showing its entitlement to summary judgment, thereby shifting the burden to the plaintiff to demonstrate the existence of a triable issue of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The unsworn statements submitted by the plaintiff do not constitute evidentiary proof in admissible form sufficient to defeat the motion (see, Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Simms v. North Shore Univ. Hosp., 192 A.D.2d 700, 597 N.Y.S.2d 113).   Notwithstanding that the respondent failed to comply with the plaintiff's discovery demands, the plaintiff failed to demonstrate that the evidence needed to effectively oppose the instant motion was within the exclusive knowledge of the respondent (see, CPLR 3212[f] ).

MEMORANDUM BY THE COURT.