Opinion
Argued June 3, 1986
Decided July 8, 1986
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, Con. G. Cholakis, J.
Jane D. Martini for appellant.
Richard A. Kohn for plaintiff-respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and defendant Green Truck Supply's motion for summary judgment granted. Certified question answered in the affirmative.
We agree with the dissenting memorandum of Justice John T. Casey at the Appellate Division ( 111 A.D.2d 448, 450) that in light of the evidentiary proof tendered by Green in support of its motion, plaintiff was required to tender proof in admissible form to establish the existence of a triable issue of fact. Plaintiff's attorney's affidavit, which merely alleges in conclusory form that such proof exists but fails to tender it in opposition to the motion or to offer an excuse for such failure, was patently insufficient for that purpose (Zuckerman v City of New York, 49 N.Y.2d 557). Moreover, we note that plaintiff did not controvert Green's proof that it had "no written or oral agreement * * * [with the] employer of plaintiff's decedent * * * to provide routine or systematic maintenance on [its] vehicle".
Chief Judge WACHTLER and Judges MEYER, SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur in memorandum.
Order reversed, etc.