FABBRICATORE FABBRICATORE v. LINDENHURST UNION FREE SCHOOL DISTRICT

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

John E. FABBRICATORE, Jr., an Infant, by His Father and Natural Guardian, John FABBRICATORE, et al., respondents, v. LINDENHURST UNION FREE SCHOOL DISTRICT, appellant, et al., defendants.

Decided: March 22, 1999

SONDRA MILLER, J.P., ANITA R. FLORIO, LEO F. McGINITY and DANIEL F. LUCIANO, JJ. Kroll & Tract, LLP, Mineola, N.Y. (Stanley E. Orzechowski of counsel), for appellant. Kahn & Gordon, New York, N.Y. (Seligson, Rothman & Rothman [Martin S. Rothman, Harold Gordon, and Alyne I. Diamond] of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant Lindenhurst Union Free School District appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated August 28, 1996, which denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

On a motion for summary judgment, the movant initially bears the burden of setting forth evidentiary facts sufficient to entitle that party to judgment as a matter of law.   Only then does the burden shift to the opposing party to come forward with proof (see, Piccolo v. De Carlo, 90 A.D.2d 609, 456 N.Y.S.2d 171).   Where, as here, the moving papers are insufficient, there is no necessity for an opposing party to respond with evidentiary proof (see, Greenberg v. Manlon Realty Inc., 43 A.D.2d 968, 352 N.Y.S.2d 494;  Holtz v. Niagara Mohawk Power Corp., 147 A.D.2d 857, 538 N.Y.S.2d 80).   Since the appellant did not meet the initial burden of setting forth evidentiary facts sufficient to establish entitlement to judgment as a matter of law, the Supreme Court properly denied the cross motion (see, Coley v. Michelin Tire Corp., 99 A.D.2d 795, 472 N.Y.S.2d 125).

MEMORANDUM BY THE COURT.

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