Municipal Testing Lab., Inc. v Brom

Municipal Testing Lab., Inc. v Brom 2007 NY Slip Op 02725 [38 AD3d 862] March 27, 2007 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Municipal Testing Laboratory, Inc., Appellant,
v
Aleksandr Brom et al., Respondents.

—[*1] 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 NY2d 557, 562 [1980]), 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 AD3d 906 [2006]; Orelli v Showbiz Pizza Time, 302 AD2d 440, 441 [2003]; Ritts v Teslenko, 276 AD2d 768, 769 [2000]). Therefore, the Supreme Court erred in denying the plaintiff's motion, in effect, for summary judgment on the issue of liability. Miller, J.P., Spolzino, Goldstein and McCarthy, JJ., concur.