Fiallos v New York Univ. Hosp., 2011 NY Slip Op 05623 (1st Dept. 2011)

In making its motion, defendant assumed the burden of disproving plaintiff's Bronx County residence (see e.g. Clarke v Ahern Prod. Servs., 181 AD2d 514 [1992]). Counsel's affidavit by which he cites unspecified "investigative efforts" that revealed that someone other than plaintiff occupied the apartment amounts to mere hearsay and is insufficient to carry defendant's initial burden (see Hurley v Union Trust Co. of Rochester, 244 App Div 590 [1935]). Even if accepted, defendant's proof would fall far short of establishing that plaintiff did not live anywhere in Bronx County when this action was commenced. Accordingly, defendant's failure to meet its initial burden of making a prima facie showing of entitlement to relief makes it unnecessary to consider the sufficiency of plaintiff's opposition to the motion (see e.g. Frees v Frank & Walter Eberhart L.P. No.1, 71 AD3d 491, 492 [2010]).

Petrillo v Town of Hempstead, 2011 NY Slip Op 05474 (2nd Dept. 2011)

Certain statements allegedly made by his decedent to him concerning the condition at issue constituted inadmissible hearsay (see Nucci v Proper, 95 NY2d 597, 602; Roldan v New York Univ., 81 AD3d 625; Rodriguez v Sixth President, Inc., 4 AD3d 406, 407).

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