Opinion
Submitted May 5, 1999
June 14, 1999
In two related actions for tuition reimbursement pursuant to Education Law § 3202(4), one for the 1994-1995 school year and one for the 1995-1996 school year, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (D'Emilio, J.), dated August 11, 1998, as denied that branch of its motion which was for summary judgment in its favor in both actions.
Kevin A. Seaman (Hamburger, Maxson Yaffe, LLP, Melville, N Y [Richard Hamburger and David H. Pearl] of counsel), for appellant.
Scheyer Jellenik, Smithtown, N.Y. (Richard I. Scheyer of counsel), for respondent.
SONDRA MILLER, J.P., THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment in its favor in both actions is granted.
The plaintiff made a prima facie showing that it was entitled to summary judgment on its claim for tuition reimbursement pursuant to Education Law § 3202(4), thereby shifting the burden to the defendant to demonstrate that a triable issue of fact exists by submission of evidence in admissible form ( see, North Babylon Union Free School Dist. v. Brentwood Union Free School Dist., 246 A.D.2d 634; Three Vil. Cent. School Dist. v. Brentwood Union Free School Dist., 167 A.D.2d 385). The defendant's opposition, which was based upon supposition and conjecture, was insufficient to meet that burden and, therefore, that branch of the plaintiff's motion which was for summary judgment should have been granted ( see, North Babylon Union Free School Dist. v. Brentwood Union Free School Dist., supra; Three Vil. Cent. School Dist. v. Brentwood Union Free School Dist., supra).