Austin v. McDonald — 198 A.D.2d 902

Majority

p. 902

Harold L. Austin et al., as Conservators and as Parents and Natural Guardians of Daniel W. Austin, Appellants, v Jeff E. McDonald et al., Defendants, and Aspen Square Management Co., Inc., Respondent.

[605 NYS2d 722]

—Order unanimously affirmed without costs. Memorandum: In moving for summary judgment, defendant Aspen Square Management Co., Inc. (Aspen Square) was required to establish its defense "sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212 [b]; see, Iselin & Co. v Mann Judd Landau, 71 NY2d 420 , 425). Aspen Square met that burden by presenting evidence in admissible form demonstrating that defendant Jeff E. McDonald was not an employee of Aspen Square and that Aspen Square is distinct from defendants McDonald & Sons, Inc., and James McDonald, doing business as McDonald & Sons. 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. Plaintiffs presented no evidence controverting Aspen Square’s proof that defendant Jeff Me-

p. 903

Donald worked for an independent contractor hired by Aspen Square merely to do the painting work at Wildwood Acres. Supreme Court properly granted summary judgment to Aspen Square (see, Crage v Kissing Bridge Ski Area, 186 AD2d 987 , 988, lv denied 81 NY2d 702 ). (Appeal from Order of Supreme Court, Niagara County, Rath, Jr., J. — Summary Judgment.) Present — Green, J. P., Balio, Fallon, Boomer and Davis, JJ.

Cases cited

William Iselin & Co. v. Landau 71 NY2d 420 N.Y. 1988-03-22 at 425 p. 902
Zuckerman v. City of New York 49 NY2d 557 N.Y. 1980-04-01 at 562 p. 902
Crage v. Kissing Bridge Ski Area 186 AD2d 987 N.Y. App. Div. 1992-10-07 at 988 p. 903