Summary
In Lo Cicero v. Frisian, 150 AD2d 761 (2nd Dept. 1989), the Court held that the failure of the party moving to submit evidentiary proof in admissible form, i.e. signed and notarized deposition transcripts, warranted denial of movant's summary judgment motion as a matter of law.
Summary of this case from Olmoz v. Wal-Mart Stores, Inc.Opinion
May 30, 1989
Appeal from the Supreme Court, Suffolk County (Saladino, J.).
Ordered that the order is affirmed, with costs to the respondent Frisian.
We agree with the Supreme Court, Suffolk County, that the plaintiff Susan Lo Cicero's papers were inadequate to warrant granting summary judgment to her dismissing the counterclaims interposed against her by the defendants. She failed to submit evidentiary proof in admissible form, since the transcripts of the examinations before trial of herself and her coplaintiff were unsigned and unsworn (see, Horowitz v Kevah Konner, Inc., 67 A.D.2d 38, 41; Pathmark Graphics v J.M. Fields, Inc., 53 A.D.2d 531). Although a duly executed transcript of the defendant Irwin Goldschlag's examination before trial was submitted, that testimony raised triable issues of fact with respect to the plaintiff Susan Lo Cicero's possible negligence in the operation of her motor vehicle (cf., Andre v Pomeroy, 35 N.Y.2d 361). Brown, J.P., Lawrence, Kunzeman and Kooper, JJ., concur.