The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Accordingly, affirmations from attorneys having no personal injury knowledge of the facts are not evidence and offer nothing more than hearsay. Consequently, any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Similarly, unsworn accident reports are inadmissible and cannot be considered by the court. With regard to leases such documents can be admitted and considered for purposes of summary judgment if they are accompanied by an affidavit, which establish that the documents attached are true and accurate copies of documents contained within the proponent’s file. An opponent’s failure to object to a business record for which no foundation is laid coupled with the opponent’s reliance upon the same allows the court to consider said document in support of a motion for summary judgment.
Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. The burden, however, always remains where it began, with the movant on the issue. Hence, “if the evidence on the issue is evenly balanced, the party that bears the burden must lose.” It is worth noting, however, that while the movant’s burden to proffer evidence in admissible form is absolute, the opponent’s burden is not. On this issue the Court of Appeals has stated to obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment’ in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.’ Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. Dog Bite was not involved.
Accordingly, generally, the opponent of a motion for summary judgment seeking to have the court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Other cases seem to hold that otherwise inadmissable evidence may be used to defeat summary judgment if the inadmissable evidence would be admissible at trial and raises questions of fact.
A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff’s proof.
NY Insurance Law §5104(a) states that notwithstanding any other law, in any action by or on behalf of a covered person against another covered person for personal injury arising out of negligence in the use or operation of a motor vehicle in this state there shall be no right of recovery for non-economic loss, except in the case of serious injury.