Woods v. Zik Realty Corp., 172 A.D.2d 606, 568 N.Y.S.2d 146 (N.Y.A.D. 2 Dept., Apr 08, 1991) (NO. 1968E, 1968AE)

Supreme Court, Appellate Division, Second Department, New York.
Marie WOODS, et al., Respondents,v.ZIK REALTY CORP., et al., Appellants, et al., Defendant.

April 8, 1991.

 Pedestrian brought personal injury action against an employer after a worker cleaning an appliance on sidewalk accidentally sprayed oven cleaner into pedestrian's eyes.   The Supreme Court, Kings County, Williams, J., denied employer's summary judgment motion, and appeal was taken.   The Supreme Court, Appellate Division, held that employer established by deposition testimony and documentary evidence annexed to attorneys' affirmations that worker was independent contractor and not employee.
 Reversed.

West Headnotes
[1] Judgment  185.1(3)228k185.1(3) Most Cited Cases
Fact that supporting proof was placed before court by way of attorney's affirmations annexing deposition testimony and other proof, rather than affidavits of fact made on personal knowledge, was not fatal to summary judgment motion.
[2] Judgment  185(2)228k185(2) Most Cited Cases
Once movant seeking summary judgment has made prima facie showing of entitlement, burden shifts to opposing party to establish existence of material issues of fact by evidentiary proof in admissible form.
[3] Judgment  185.3(21)228k185.3(21) Most Cited Cases
Deposition testimony and documentary evidence that worker cleaning appliance on sidewalk at time of pedestrian's injury was independent contractor and not employee supported finding that pedestrian failed to raise any triable issues of fact in her personal injury action against employer. **146 Goldblum & DiCicco, Brooklyn (Debra DiCicco, of counsel), for appellant Zik Realty Corp.
 Louis Russi, New York City, for appellant Gardenia Deli Foods.
 Kirschenbaum & Kirschenbaum, P.C., Garden City (Kenneth Kirschenbaum and  Thomas M. Hoey, Jr., of counsel), for respondents.

 Before BRACKEN, J.P., and KUNZEMAN, SULLIVAN and ROSENBLATT, JJ.


 *606 MEMORANDUM BY THE COURT.
 In an action to recover damages for personal injuries and loss of consortium, the defendant Zik Realty Corp. appeals from an order of the Supreme Court, Kings County (Williams, J.), dated October 11, 1989, which denied its motion for summary judgment, and the defendant Gardenia Deli Foods separately appeals from an order of the same court, also dated October 11, 1989, which denied its motion for summary judgment.
 ORDERED that the orders are reversed, on the law, the respective motions by the defendants Zik Realty Corp. and Gardenia Deli Corp for summary judgment dismissing the complaint and cross claims against each of them are granted, and the action against the remaining defendant is severed;  and it is further,
 **147 ORDERED that the appellants are awarded one bill of costs.
 The appellants contend that they made a prima facie showing of their entitlement to summary judgment by submission of affirmations of their respective attorneys with deposition testimony and other proof and that the plaintiffs failed to establish the existence of material issues of fact by evidentiary proof in admissible form.
 [1][2] That the appellants' supporting proof was placed before the court by way of attorneys' affirmations annexing deposition testimony and other proof, rather than affidavits of fact made upon personal knowledge, is not fatal to their respective motions (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   Moreover, once a movant has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to establish the existence of material issues of fact by evidentiary proof in admissible form (see, Alvarez v. Prospect Hosp., supra, at 324, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572).
 [3] The defendant Janusz Machnica was cleaning an appliance on the sidewalk adjacent to premises owned by Zik Realty Corp. and leased by Gardenia Deli Foods, when oven cleaner was accidentally sprayed into the eyes of the plaintiff Marie Woods as she walked along the sidewalk.   On their respective motions for summary judgment the appellants established by *607 deposition testimony and documentary evidence annexed to affirmations of their attorneys that Janusz Machnica was an independent contractor.   The plaintiffs failed to respond with evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact.   Under these circumstances the appellants were entitled to summary judgment.
568 N.Y.S.2d 146, 172 A.D.2d 606
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