Olan v. Farrell Lines Inc.

OPINION OF THE COURT Memorandum. The order of the Appellate Division should be affirmed, with costs, for the reasons stated in its memorandum (105 AD2d 653). We add only that, before considering whether plaintiff put forth sufficient proof to defeat defendant’s motion for summary judgment, the issue of whether defendant established its defense must first be addressed (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). In this instance, defendant put forth sufficient evidentiary proof in admissible form, and plaintiff raised no issue of material fact to support its claim of negligence and unseaworthiness. The fact that defendant’s supporting proof was placed before the court by way of an attorney’s affidavit annexing plaintiff’s deposition testimony and other proof, rather than affidavits of fact on personal knowledge, does not defeat defendant’s right to summary judgment (see, Gaeta v New York News, 62 NY2d 340, 350; Zuckerman v City of New York, supra, p 563). [1094] Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Kaye concur; Judge Alexander taking no part. On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.