Appeals from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered October 16, 2007. The order, insofar as appealed from by defendant James Ursillo, denied so much of his motion for summary judgment as sought dismissal of the sixth cause of, and, insofar as appealed from by defendant Joan Chiacchiero, denied so much of her motion for summary judgment as sought dismissal of the second cause of [*2]action.

On the court's own motion, the appeals are consolidated for purposes of disposition.

Order, insofar as appealed from, reversed without costs, the branch of defendant James Ursillo's motion for summary judgment seeking dismissal of the sixth cause of action and the branch of defendant Joan Chiacchiero's motion for summary judgment seeking dismissal of the second cause of action granted, and complaint, insofar as asserted against defendants James Ursillo and Joan Chiacchiero, dismissed.

Plaintiff commenced this action against defendants A.A.W. Travel, Inc., Joan Chiacchiero (Chiacchiero) and James Ursillo (Ursillo) to recover amounts paid for travel services which were not provided, alleging in its complaint that defendants were liable for breach of contract, conversion and fraud. The corporate defendant defaulted, and the individual defendants separately moved for summary judgment dismissing the causes of action of the complaint insofar as asserted against them. The Civil Court dismissed all of the causes of action insofar as asserted against the individual defendants except the second cause of action for breach of contract asserted against defendant Chiacchiero and the sixth cause of action for breach of contract asserted against defendant Ursillo. The instant appeals ensued.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). The failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (id.). Once this showing is made, however, 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 (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In the instant case, the Civil Court specifically found that both individual defendants had established their prima facie entitlement to judgment as a matter of law, thereby shifting the burden to plaintiff to come forward with proof in admissible form to establish a triable issue of fact. The court also found that in opposition to the motions, plaintiff had not come forward with evidence in admissible form sufficient to defeat the motions. The opposition papers lacked signed and sworn statements from persons with knowledge of the facts, as they consisted solely of counsel's affirmation; the unsigned and unsworn affidavit of the corporate defendant's former employee as well as her unsigned and unsworn deposition transcript; and the unsigned and unsworn affidavit of a person affiliated with plaintiff who allegedly contracted for the travel services. Even assuming that the unsigned and unsworn deposition transcript of defendant's former employee may be considered in opposition to the summary judgment motions, since it was certified by the court reporter (see CPLR 3116; see also Morchik v Trinity School, 257 AD2d 534 [1999]), the deponent's testimony failed to raise a triable issue of fact sufficient to defeat summary judgment.

The motion court dismissed all the causes of action insofar as asserted against the individual defendants except for the second cause of action for breach of contract asserted against defendant Chiacchiero and the sixth cause of action for breach of contract asserted against defendant Ursillo. Since the opposition papers suffer from the same evidentiary deficiency as described above, the motion court should have dismissed the remaining causes of action against [*3]the individual defendants as well.

We note that to the extent plaintiff seeks to pierce the corporate veil in order to hold the individual defendants liable, it has been held that piercing the corporate veil is an equitable form of relief which the Civil Court lacks the power to grant (see 19 W. 45th St. Realty Co. v Doram Elec. Corp., 233 AD3d 184 [1996]).

Accordingly, in view of the foregoing, the order, insofar as appealed from, is reversed, and the branch of defendant James Ursillo's motion for summary judgment seeking dismissal of the sixth cause of action and the branch of defendant Joan Chiacchiero's motion for summary judgment seeking dismissal of the second cause of action are granted. Inasmuch as there are no longer any extant causes of action remaining against the individual defendants, plaintiff's complaint, insofar as asserted against defendants James Ursillo and Joan Chiacchiero, is dismissed.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: March 12, 2009