Yi v. JNJ Supply Corp.

—In an action to recover damages for personal injuries, the defendants JNJ Supply Corp. and Jose Malo appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Golia, J.), dated April 12, 1999, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. Ordered that the order is affirmed insofar as appealed from, with costs. Where, as here, a movant has made out a prima facie case for summary judgment, the opposing party must show the existence of a triable factual issue to defeat the motion (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557). Generally, the opposing party must make such a showing by way of evidentiary proof in admissible form (see, Zuckerman v City of New York, supra). However, under certain circumstances “[o]ur courts have recognized that proof which might be inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment” (Zuilkowski v Sentry Ins., 114 AD2d 453, 454; see also, Phillips v Kantor & Co., 31 NY2d 307). Under the circumstances of this case, the facts evident in the papers submitted in opposition to the motion are sufficient to present triable issues of fact as to whether the defendant Jose Malo was negligent in the manner in which he operated his vehicle and, if so, whether his negligence was a proximate cause of the accident which caused the plaintiffs injuries (see generally, Guzman v Strab Constr. Corp., 228 AD2d 645; see also, Chianese v Meier, 246 AD2d 328). Sullivan, J. P., Florio and Luciano, JJ., concur,