Sunday, June 21, 2009

Rule of Evidence

- “The movant must tender evidence, by proof in admissible form, to establish the cause of action “sufficiently to warrant the court as a matter of law in directing judgment” (CPLR 3212[b]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). “Failure to make such shoeing requires the denial of the motion, regardless of the opposing papers.”((Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Vitiello v. Mayrich Constr. Corp., 255 AD2d 182, 184 [1st Dept 1998]). Once the movant has offered sufficient proof to establish a prima facie case, “the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action.”(Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986])

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