Opinion
May 12, 1992
Appeal from the Supreme Court, New York County (Beverly S. Cohen, J.).
Both the original summary judgment motion and defendants' opposition to plaintiff's motion to reargue were submitted upon attorney affidavits, with no affidavits from persons having actual knowledge of the events. Parties moving for summary judgment are obligated to prove through admissible evidence that they are entitled to judgment as a matter of law (Pastoriza v State of New York, 108 A.D.2d 605, 606). Where the movant, as here, fails to meet this burden, the motion should be denied, regardless of the adequacy of the opposing papers (Pastoriza v State of New York, supra). In any event, plaintiff's submissions were sufficient to raise a triable issue of fact as to whether defendants breached their duty of care to the decedent, and if so, whether such breach was the proximate cause of the decedent's injury and ultimate death. While defendants may have had no obligation in the first instance to assist the decedent (Public Health Law § 1352-b), once they moved him outside the premises they had a duty to act with due care (see, Parvi v. City of Kingston, 41 N.Y.2d 553, 559; Wolf v. City of New York, 39 N.Y.2d 568, 573).
Concur — Rosenberger, J.P., Wallach, Ross, Asch and Kassal, JJ.