ALLSTATE INSURANCE COMPANY v. KEIL

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

ALLSTATE INSURANCE COMPANY a/s/o Owen Pardo, respondent, v. Jeffrey KEIL, appellant.

Decided: January 31, 2000

GUY JAMES MANGANO, P.J., MYRIAM J. ALTMAN, ROBERT W. SCHMIDT and NANCY E. SMITH, JJ. Rebore, Thorpe & Pisarello, P.C. (Schapiro & Reich, Lindenhurst, N.Y. [Perry S. Reich] of counsel), for appellant. Lisa J. Kallan, New York, N.Y., for respondent.

In a subrogation action to recover money paid by the plaintiff for losses in a fire, the defendant appeals from an order of the Supreme Court, Kings County (Rappaport, J.), dated June 15, 1999, which granted the plaintiff's motion for summary judgment.

ORDERED that the order is affirmed, with costs.

The evidence submitted by the plaintiff in support of its motion for summary judgment was sufficient to establish its prima facie entitlement to judgment as a matter of law.   The defendant failed to submit evidence in admissible form to rebut this prima facie showing (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 The alleged statements of the building caretaker contained in the defendant's opposition papers to the plaintiff's motion constituted inadmissible hearsay (see, Eddy v. Tops Friendly, 59 N.Y.2d 692, 463 N.Y.S.2d 437, 450 N.E.2d 243;  Bellafiore v. L & K Holding Corp., 244 A.D.2d 443, 664 N.Y.S.2d 353;  Agoglia v. Sterling Foster & Co., 237 A.D.2d 549, 655 N.Y.S.2d 636;  Kruck v. St. John's Episcopal Hosp., 228 A.D.2d 565, 644 N.Y.S.2d 325).   While hearsay evidence of statements by an identified declarant has been held sufficient to withstand a motion for summary judgment under certain circumstances (see, Egleston v. Kalamarides, 58 N.Y.2d 682, 458 N.Y.S.2d 530, 444 N.E.2d 994;  Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298;  Landisi v. Beacon Community Dev. Agency, 180 A.D.2d 1000, 580 N.Y.S.2d 577), no such circumstances are present in this case because the defendant has provided no excuse for his failure to tender this evidence in admissible form (see, Schiffren v. Kramer, 225 A.D.2d 757, 640 N.Y.S.2d 175;  Egleston v. Kalamarides, supra).

MEMORANDUM BY THE COURT.

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