Opinion
Argued December 16, 1999
February 17, 2000
Newman Tannenbaum Helpern Syracuse Hirschtritt, LLP, New York, N Y (Ralph A. Siciliano and Andrew W. Singer of counsel), for appellants-respondents.
Nesenoff Miltenberg, New York, N.Y. (Robert Fierman of counsel), for respondent-appellant.
LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, WILLIAM C. THOMPSON, SONDRA MILLER, JJ.
DECISION ORDER
In an action, inter alia, to recover damages for fraud, the defendants appeal from (1) so much of an order of the Supreme Court, Westchester County (Rosato, J.), entered December 3, 199 8, as denied those branches of their motion which were for summary judgment dismissing the first, third, fourth, sixth, seventh, tenth, and eleventh causes of action and (2) an order of the same court, entered June 3, 1999, as, upon reargument, adhered to its prior determination denying the defendant's separate motion to strike the jury demand, and the plaintiff cross-appeals from so much of the order entered December 3, 1998, as granted those branches of the defendants' motion which were for summary judgment dismissing the ninth and twelfth causes of action.
ORDERED that the order entered December 3, 1998, is reversed insofar as appealed from, and those branches of the defendant's motion which were for summary judgment dismissing the first, third, fourth, sixth, seventh, tenth, and eleventh causes of action are granted, and the complaint is dismissed in its entirety; and it is further,
ORDERED that the order entered December 3, 1998, is affirmed insofar as cross-appealed from; and it is further,
ORDERED that the appeal from the order entered June 3, 1999, is dismissed as academic; and it is further,
ORDERED that the defendants are awarded one bill of costs.
The defendants demonstrated, by admissible evidence, their entitlement to summary judgment as a matter of law, thus shifting the burden to the plaintiff to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324). The defendants' proof made out a prima facie case that their actions were not fraudulent and that the subject contracts were legitimate. The plaintiffs' conclusory allegations and hypotheses alleging fraud in response thereto, were insufficient to raise a triable factual issue (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562; see generally, Alvarez v. Prospect Hosp., 68 N.Y.2d 320). Thus, the defendants were entitled to summary judgment dismissing the complaint in its entirety.