Opinion
June 7, 1991
Appeal from the Supreme Court, Monroe County, Willis, J.
Present — Dillon, P.J., Denman, Lawton, Lowery and Davis, JJ.
Order unanimously reversed on the law with costs to plaintiffs and defendant Margaret A. Campbell, motion denied, complaint and cross claim reinstated. Memorandum: Supreme Court erred in granting the motion of defendant Doyle Courier Service for summary judgment dismissing the complaint in this case, which arose out of a motor vehicle collision. Doyle had the burden of tendering evidentiary proof in admissible form establishing that it should have judgment as a matter of law (see, Iselin Co. v Mann Judd Landau, 71 N.Y.2d 420; Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065; see also, CPLR 3212 [b]). That burden was not met. Neither its attorney's affirmation nor the description of the accident in the police accident report was based on personal knowledge (see, Egan v Federated Dept. Stores, 108 A.D.2d 718; Casey v Tierno, 127 A.D.2d 727). Moreover, plaintiffs' papers were sufficient to raise questions of fact concerning whether the conduct of defendant Maracle, driver of the Doyle vehicle, was reasonable under the circumstances (see, Davis v Best, 131 A.D.2d 535; Sciocchetti v Trichilo, 127 A.D.2d 958).
In addition, the court should not have dismissed the complaint against defendant Maracle nor dismissed defendant Campbell's cross claim against defendants Doyle Courier Service and Maracle because the relief was not requested by any party (see, Double A Limousine Serv. v New York, N.Y. Limousine Serv., 130 A.D.2d 403).