MARDEN v. OC

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Supreme Court, Appellate Division, First Department, New York.

Mary Grace MARDEN, et al., Plaintiffs-Appellants, v. MAURICE VILLENCY, INC., Defendant-Respondent, Spa Tonon OC, Defendant.

Decided: May 18, 2006

BUCKLEY, P.J., MAZZARELLI, FRIEDMAN, SWEENY, McGUIRE, JJ. Law Offices of Dan Brecher, New York (Edward F. Westfield of counsel), for appellants. Carroll McNulty & Kull, LLC, New York (Erik J. Pedersen of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered March 3, 2005, which granted defendant Maurice Villency's motion for summary judgment, unanimously affirmed, without costs.

 The moving defendant established its prima facie entitlement to summary judgment, shifting the burden to plaintiffs to demonstrate a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 326-327, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).   To withstand the motion, plaintiffs were required to come forward with evidentiary proof in admissible form.   Instead, they opposed the motion with the unsworn report of an interior designer.   Since the contents of the report were not in admissible form, they were of no evidentiary value.   Even if the report had been in affidavit form, its probative value was questionable as its contents were conclusory and speculative (see Timmins v. Tishman Constr. Corp., 9 A.D.3d 62, 70, 777 N.Y.S.2d 458 [2004], lv. dismissed 4 N.Y.3d 739, 790 N.Y.S.2d 651, 824 N.E.2d 52 [2004] ).

 Furthermore, even assuming Maurice Villency's service technician had noted the chair at issue was inadequately glued, there was no testimony as to the condition of the chairs at the time of sale.   Notably, the service technician testified that the chairs deteriorated from usage, and it was common for glue to dry up with time.   Thus, plaintiffs have not shown that a manufacturing or design defect was a substantial factor in this accident (see Shelden v. Hample Equip. Co., 59 N.Y.2d 618, 463 N.Y.S.2d 194, 449 N.E.2d 1272 [1983], affg. 89 A.D.2d 766, 453 N.Y.S.2d 934 [1982] ).