Primeau v. Nationwide Insurance

Judgment unanimously reversed on the law without costs and motion denied. Memorandum: The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by "tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; see also, GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965). If the moving party fails to make such a showing, the motion must be denied, "regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Center, supra, at 853).

Upon our review of the record, we conclude that plaintiffs failed to submit proof in admissible form of the value of their loss and, consequently, that Supreme Court erred by granting plaintiffs’ motion for summary judgment. (Appeal from judgment of Supreme Court, Erie County, McGowan, J.—summary judgment.) Present—Callahan, J. P., Doerr, Denman, Green and Balio, JJ.