Opinion
July 1, 1996
Appeal from the Supreme Court, Nassau County (Robbins, J.).
Ordered that the judgment is reversed, on the law, with costs, the plaintiff's motion for summary judgment is denied, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
By order dated January 19, 1993, this Court reversed a judgment of the Supreme Court, Nassau County, which, upon a prior order granting the plaintiff's motion for summary judgment as to liability and after a nonjury trial as to damages, was in favor of the plaintiff, and remitted the matter to the Supreme Court for the completion of discovery and a new trial as to liability and damages ( see, Silverite Constr. Co. v. Town of N. Hempstead, 189 A.D.2d 811). The parties then conducted discovery and the plaintiff again moved for summary judgment. The renewed motion for summary judgment was granted. We reverse.
The proof obtained during discovery did not resolve or eliminate the factual issues raised in the plaintiff's prior motion, and instead confirmed the existence of issues of fact that require a trial.
Contrary to the Supreme Court's conclusion, the attorney's affirmation submitted by the defendant in opposition to the motion properly placed before the court evidence in admissible form since it was accompanied by documentary evidence and deposition testimony ( see, Olan v. Farrell Lines, 64 N.Y.2d 1092; Zuckerman v. City of New York, 49 N.Y.2d 557). O'Brien, J.P., Sullivan, Florio and McGinity, JJ., concur.