Mattson v. Owens

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: In moving for summary judgment, defendants Maple City Disposal and Steven Smith, individually and doing business as Maple City Disposal (defendants) were required to establish their defense "sufficiently to warrant the court as a matter of law in directing judgment” in their favor (CPLR 3212 [b]; see, Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425). Defendants met that burden by submitting evidence in admissible form demonstrating that defendant William D. Owens was not acting in the scope of his employment at the time of the accident (see, Lundberg v State of New York, 25 NY2d 467, 470, rearg denied 26 NY2d 883; Vangersky v Moogan, 128 AD2d 699; Ehlenfield v State of New York, 62 AD2d 1151, Iv denied 44 NY2d 649). To defeat the motion, plaintiffs were required to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact (see, Iselin & Co. v Mann Judd Landau, supra, at 425; Zuckerman v City of New York, 49 NY2d 557, 562). Plaintiffs failed to meet that burden. We modify the order, therefore, by granting defendants’ motion for summary judgment. That part of the order denying defendants’ application for sanctions against plaintiffs and their counsel is affirmed. (Appeal from Order of Supreme Court, Wyoming County, Dadd, J. — Summary Judgment.) Present — Denman, P. J., Green, Balio, Fallon and Boomer, JJ.