Vaskoski v. Campbell

—Order unanimously reversed on the law with costs to plaintiffs and defendant Margaret A. Campbell, motion denied, complaint and cross claim reinstated. Memorandum: Supreme Court erred in granting the motion of defendant Doyle Courier Service for summary judgment dismissing the complaint in this case, which arose out of a motor vehicle collision. Doyle had the burden of tendering evidentiary proof in admissible form establishing that it should have judgment as a matter of law (see, Iselin & Co. v Mann Judd Landau, 71 NY2d 420; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; see also, CPLR 3212 [b]). That burden was not met. Neither its attorney’s affirmation nor the description of the accident in the police accident report was based on personal knowledge (see, Egan v Federated Dept. Stores, 108 AD2d 718; Casey v Tierno, 127 AD2d 727). Moreover, plaintiffs’ papers were sufficient to raise questions of fact concerning whether the conduct of defendant Maracle, driver of the Doyle vehicle, was reasonable under the circumstances (see, Davis v Best, 131 AD2d 535; Sciocchetti v Trichilo, 127 AD2d 958). In addition, the court should not have dismissed the complaint against defendant Maracle nor dismissed defendant Campbell’s cross claim against defendants Doyle Courier Service and Maracle because the relief was not requested by any party (see, Double A Limousine Serv. v New York, N. Y. Limousine Serv., 130 AD2d 403). (Appeal from Order of Supreme Court, Monroe County, Willis, J.—Summary Judgment.) Present—Dillon, P. J., Denman, Lawton, Lowery and Davis, JJ.