Richard Chalson et al., Respondents, v. Jodi Bus Co., Inc., Appellant, et al., Defendants

Richard Chalson et al., Respondents, v Jodi Bus Co., Inc., Appellant, et al., Defendants. [648 NYS2d 1006] [MAJORITY] —In an action to recover damages for personal injuries, etc., the defendant Jodi Bus Co., Inc., appeals from an order of the Supreme Court, Kings County (Vaccaro, J.), entered January 31, 1996, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it. Ordered that the order is affirmed, without costs or disbursements. The injured plaintiff, a bus inspector, alleged that he was injured while riding on a bus owned and operated by the appellant. The appellant attempted to establish that the plaintiff had inspected a bus owned by another company on the day of the accident in order to prove that the plaintiff was not injured on its bus. To obtain summary judgment the movant must establish its cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment in its favor, and it must do so by tender of evidentiary proof in admissible form (CPLR 3212 [b]; see, Zuckerman v City of New York, 49 NY2d 557, 562). The appellant failed to sustain its initial burden of establishing that it was entitled to judgment since the evidence presented was insufficient to prove, as a matter of law, that the injured plaintiff did not suffer his injuries on the bus owned by the appellant. Accordingly, the Supreme Court properly denied the appellant’s motion for summary judgment. Miller, J. P., Ritter, Sullivan, Friedmann and Krausman, JJ., concur.