Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065 (1979)

To defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form or demonstrate an acceptable excuse for the failure to do so; a hearsay affirmation by counsel is insufficient.

Summary

This case concerns the evidentiary burden required to defeat a motion for summary judgment. Plaintiff was injured near a bus stop and sued the city, the transit authority, the property owner (Royfost), and the tenant. After the plaintiff’s claim against the transit authority was dismissed, the transit authority sought summary judgment on all cross-claims. Royfost opposed, submitting only an attorney’s affirmation based on hearsay from a comptroller’s hearing. The Court of Appeals held that the attorney’s hearsay affirmation was insufficient to defeat summary judgment, reiterating that admissible evidence or a valid excuse for its absence is required.

Facts

On April 3, 1975, the plaintiff was injured when she fell at a curb near a New York City bus stop. She sued the city (sidewalk owner), the New York City Transit Authority (bus operator), Royfost Co., Inc. (abutting property owner), and Harvey’s Seafood House, Inc. (abutting property tenant). Each defendant cross-claimed against the others for indemnification or apportionment of liability.

Procedural History

The Supreme Court granted the transit authority’s motion for summary judgment dismissing the plaintiff’s claim against it, finding no duty to maintain the sidewalk. Neither the plaintiff nor the other defendants appealed. The transit authority then moved for summary judgment dismissing all cross-claims against it. The Supreme Court denied the transit authority’s motion. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

Issue(s)

Whether an attorney’s affirmation, based on hearsay and speculation, is sufficient to defeat a motion for summary judgment when the moving party has demonstrated entitlement to judgment.

Holding

No, because the party opposing summary judgment must produce evidentiary proof in admissible form demonstrating a triable issue of fact or provide an acceptable excuse for failing to do so; an attorney’s hearsay affirmation is insufficient.

Court’s Reasoning

The Court emphasized that the moving party (the transit authority) met its burden by demonstrating the dismissal of the plaintiff’s direct claim against it. To defeat summary judgment, Royfost needed to show facts requiring a trial. Royfost submitted only an affirmation from its attorney, who lacked personal knowledge of the accident and based his statements on hearsay from a comptroller’s hearing. The Court stated that such an affirmation is “without evidentiary value and thus unavailing.” The court cited Columbia Ribbon & Carbon Mfg. Co. v A-1-A Corp., 42 NY2d 496, 500. The Court noted the absence of affidavits from the plaintiff, eyewitnesses, or transcripts of examinations before trial. The Court reiterated the established rule that mere conclusions, expressions of hope, or unsubstantiated allegations are insufficient to defeat summary judgment, citing Alvord v Swift & Muller Constr. Co., 46 NY2d 276, 281-282. The court distinguished situations where an attorney’s affidavit could be a vehicle for admissible evidence (e.g., documents, admissions). Here, the attorney lacked personal knowledge of the comptroller’s hearing. Therefore, the Appellate Division erred in denying the transit authority’s motion based on speculative negligence. As the Court stated, “[W]here the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement.”