MUNICIPAL TESTING LABORATORY INC v. BROM

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

MUNICIPAL TESTING LABORATORY, INC., appellant, v. Aleksandr BROM, et al., respondents.

Decided: March 27, 2007

HOWARD MILLER, J.P., ROBERT A. SPOLZINO, GLORIA GOLDSTEIN, and WILLIAM E. McCARTHY, JJ. Stim & Warmuth, P.C., Farmingville, N.Y. (Paula J. Warmuth of counsel), for appellant.

In an action, inter alia, to recover damages for fraud and conversion, the plaintiff appeals from an order of the Supreme Court, Nassau County (Feinman, J.), dated February 7, 2006, which denied its motion, in effect, for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for a trial on the issue of damages.

 In opposition to the plaintiff's prima facie demonstration of entitlement to judgment as a matter of law (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), the defendants submitted only an unsworn statement.   An unsworn statement is not competent evidence capable of raising a triable issue of fact (see Mazzola v. City of New York, 32 A.D.3d 906, 821 N.Y.S.2d 247;  Orelli v. Showbiz Pizza Time, 302 A.D.2d 440, 441, 753 N.Y.S.2d 737;  Ritts v. Teslenko, 276 A.D.2d 768, 769, 715 N.Y.S.2d 418).   Therefore, the Supreme Court erred in denying the plaintiff's motion, in effect, for summary judgment on the issue of liability.

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