Delgado v Butt
2008 NY Slip Op 01698 [48 AD3d 735]
February 26, 2008
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 16, 2008


Timoteo Delgado et al., Respondents,
v
Nadeem A. Butt et al., Appellants, and Constantino Balbuena Flores et al., Respondents.

[*1] Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Holly E. Peck of counsel), for appellants.

Goldberg & Carlton, PLLC, New York, N.Y. (Robert H. Goldberg of counsel), for plaintiffs-respondents.

Composto & Composto, Brooklyn, N.Y. (Eric C. Bryant of counsel), for defendants-respondents.

In an action to recover damages for personal injuries, etc., the defendants Nadeem A. Butt and Mohammad Shakeel appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated June 22, 2007, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Ordered that the order is affirmed, with one bill of costs.

A party moving for summary judgment has the burden of establishing his or her entitlement to judgment as a matter of law by coming forward with evidentiary proof, in admissible form, demonstrating the absence of any disputed material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). In this case, which arises out of an [*2]automobile accident, the deposition testimony of the two drivers involved in the accident, which was submitted by the appellants in support of their motion for summary judgment, reveals numerous questions of fact as to the happening of the accident. Accordingly, the appellants failed to make a prima facie showing of entitlement to judgment as a matter of law, and thus, the Supreme Court properly denied their motion for summary judgment (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Prudenti, P.J., Skelos, Miller, Covello and McCarthy, JJ., concur.