| Shickler v Cary |
| 2009 NY Slip Op 01464 [59 AD3d 700] |
| February 24, 2009 |
| Appellate Division, Second Department |
| Maria Shickler, Appellant, v Joelaine Cary, Respondent, etal., Defendant. |
—[*1] Canetti & Troodler, LLP (Ahmuty, Demers & McManus, Albertson, N.Y. [Brendan T.Fitzpatrick], of counsel), for respondent.
In an action, inter alia, to recover damages for battery, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), dated August21, 2007, as granted that branch of the motion of the defendant Joelaine Cary which was forsummary judgment dismissing the complaint insofar as asserted against her.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff alleges that the defendant Joseph Botta committed battery upon her. In hercomplaint she also alleged that "Botta acted at the insistence and direction of defendant JoelaineCary" (hereinafter the respondent). The Supreme Court, inter alia, granted that branch of therespondent's motion which was for summary judgment dismissing the complaint insofar asasserted against her.
The respondent established her prima facie entitlement to judgment as a matter of lawthrough the submission of the plaintiff's own deposition testimony wherein the plaintiff admittedthat she neither remembered nor heard the respondent say anything or make any gesture to Bottabefore or during the alleged battery (see generally Alvarez v Prospect Hosp., 68 NY2d320 [1986]). In opposition to this proof in admissible form, the plaintiff submitted only theaffirmation of her attorney, which lacked probative value and was insufficient to defeat themotion (see S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338 [1974]; Noel v L & M Holding, 35 AD3d681 [2006]). There was no evidence submitted [*2]that therespondent prompted Botta's actions. Accordingly, the court properly granted that branch of therespondent's motion which was for summary judgment dismissing the complaint insofar asasserted against her.
The plaintiff's remaining contention is improperly raised for the first time on appeal (see Henry v Devonshire Tire Co., 50AD3d 638 [2008]). Spolzino, J.P., Santucci, Leventhal and Chambers, JJ., concur.