ALESSANDRO v. Frank Mongeon, Jr., Respondent.  (Action No. 5.) (Appeal No. 2.) (1998)

Supreme Court erred in granting the motion of Frank Mongeon, Jr. (defendant) for summary judgment dismissing the complaint against him in action No. 5. Defendant met his initial burden by submitting evidentiary proof that the Eastman Kodak Company (Kodak) dump truck that he was driving was not involved in the accident that resulted in the death of plaintiff's decedent.   Defendant submitted proof that he had not yet left the sand and gravel company when two other Kodak dump trucks were at the scene of an accident on Scottsville Road. Plaintiff, however, came forward with evidentiary proof in admissible form that a witness who knew defendant identified him as the driver of one of the two Kodak trucks at the scene.   Plaintiff thereby raised issues of fact whether defendant was a driver involved in the accident and, if so, whether he was negligent (see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Judgment unanimously reversed on the law without costs, motion denied and complaint against defendant Frank Mongeon, Jr., reinstated.

MEMORANDUM: