Opinion · Appellate Division of the Supreme Court of the State of New York

Babcock v. Allan

Babcock v. Allan, 115 A.D.2d 297 (Appellate Division of the Supreme Court of the State of New York 1985)

Type
Opinion
Court
Appellate Division of the Supreme Court of the State of New York
Jurisdiction
New York
Date
1985-11-15
Topic
general

Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: The order is modified by dismissing the complaint in action No. 1 against the defendants Hugh Allan and Hugh *298Allan & Associates. On their motion for summary judgment, those defendants met their burden by submitting proof in evidentiary form that they did not own the automobile driven by Chris Allan and that, at the time of the collision, Chris Allan was not acting as their agent or servant. The plaintiffs submitted no proof in opposition and failed to show that "facts essential to justify opposition may exist but [could not] then be stated” (CPLR 3212 [f]). A mere hope that somehow plaintiffs will uncover evidence that will prove their case is not sufficient to defeat a motion for summary judgment (see, Trails W. v Wolff, 32 NY2d 207, 221; Badman v Civil Serv. Employees Assn., 91 AD2d 858).

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8 opinions
BABCOCK v. ALLAN,115 A.D.2d 297[4th Dept 1985]
GEORGIA BABCOCK, Individually and as Administratrix of the Estate of GERALD
BABCOCK, Deceased, Appellant-Respondent, v. CHRIS ALLAN et al., Defendants;
HUGH ALLAN, Respondent, and HUGH ALLAN ASSOCIATES, INC.,
Respondent-Appellant. (Action No. 1.)
GEORGIA BABCOCK, Individually and as Guardian and Natural Mother of LINDA
BABCOCK and Another, Infants, Appellant, v. CHRIS ALLAN et al., Defendants,
and HUGH ALLAN, Respondent. (Action No. 2.) (Appeal No. 3.)
Appellate Division of the Supreme Court of New York, Fourth Department.
November 15, 1985
Appeal from the Supreme Court, Erie County, Mintz, J.
Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: The order is modified by dismissing the complaint in action No. 1 against the defendants Hugh Allan and HughPage 298Allan Associates. On their motion for summary judgment, those defendants met their burden by submitting proof in evidentiary form that they did not own the automobile driven by Chris Allan and that, at the time of the collision, Chris Allan was not acting as their agent or servant. The plaintiffs submitted no proof in opposition and failed to show that "facts essential to justify opposition may exist but [could not] then be stated" (CPLR3212[f]). A mere hope that somehow plaintiffs will uncover evidence that will prove their case is not sufficient to defeat a motion for summary judgment(see, Trails W. v Wolff,32 N.Y.2d 207,221;Badman v Civil Serv. Employees Assn.,91 A.D.2d 858). Plaintiffs had ample opportunity to develop the facts before defendants moved for summary judgment.
Present — Callahan, J.P., Boomer, Green, O'Donnell and Schnepp, JJ.