Ayotte v. Gervasio

81 N.Y.2d 1062 (1993)

619 N.E.2d 400

601 N.Y.S.2d 463

Charles Ayotte et al., Respondents, v. Francis P. Gervasio et al., Defendants, and Joseph W. Le Febvre et al., Appellants. (And a Third-Party Action.)

Court of Appeals of the State of New York.

Decided June 15, 1993.

Saul Aronson, Albany, and Francis E. Lehner for appellants.

DeLorenzo, Gordon, Pasquariello, Weiskopf & Harding, P. C., Schenectady (Marshall P. Richer of counsel), for respondents.

Chief Judge KAYE and Judges SIMONS, TITONE, HANCOCK, JR., BELLACOSA and SMITH concur in memorandum.

*1063MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the negative.

"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). The "[f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (id., at 324). Here, in support of their summary judgment motion, movants merely assert that defendant's negligent operation of his vehicle was the sole proximate cause of plaintiff's injuries and that no triable issues of fact existed. These conclusory assertions are insufficient to demonstrate the absence of any material issues of fact.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, etc.