| Moore v 3 Phase Equestrian Ctr., Inc. |
| 2011 NY Slip Op 02853 [83 AD3d 677] |
| April 5, 2011 |
| Appellate Division, Second Department |
| Donna Moore, Appellant, v 3 Phase Equestrian Center,Inc., et al., Defendants, and Pam Brassard, Also Known as Pamela Brassard-Felton,Respondent. |
—[*1] White, Fleischner & Fino, LLP, New York, N.Y. (Allan P. White of counsel), forrespondent.
In a consolidated action, inter alia, to recover damages for breach of contract and personalinjuries, the plaintiff appeals, as limited by her brief, (1) from so much of an order of theSupreme Court, Putnam County (O'Rourke, J.), dated June 29, 2009, as granted that branch ofthe motion of the defendant Pam Brassard, also known as Pamela Brassard-Felton, which was forsummary judgment dismissing the complaint insofar as asserted against that defendant, and (2)from so much of a judgment of the same court entered August 25, 2009, as, upon the order, is infavor of the defendant Pam Brassard, also known as Pamela Brassard-Felton, and against thatdefendant dismissing the complaint insofar as asserted against that defendant. Justice Angiolillohas been substituted for the late Justice Fisher (see 22 NYCRR 670.1 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The appeal from the order must be dismissed because the right of direct appeal therefromterminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241,248 [1976]). The issues raised on the appeal from the order are brought up for review and havebeen considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
On October 7, 2004, the plaintiff was thrown from her horse while riding him at the premisesof the defendant 3 Phase Equestrian Center, Inc. (hereinafter 3 Phase). The plaintiff hadpurchased the horse from the defendant Angelo Danza, the owner and operator of 3 Phase, on orabout September 27, 2004. The plaintiff had been taking riding lessons at 3 Phase with thedefendant riding instructor Pam Brassard, also known as Pamela Brassard-Felton, in the monthspreceding the accident, and had regularly ridden the horse, then owned by Danza, during herlessons. On the date of the [*2]accident, the plaintiff arrived at 3Phase unexpectedly and rode the horse without any instructor present. The plaintiff was thrownfrom the horse and allegedly sustained various injuries. The plaintiff commenced this actionagainst Brassard, among others, to recover damages for negligence. The plaintiff alleged that,during the months before she purchased the horse, Brassard had routinely drugged the horse withtranquilizers prior to her lessons to conceal from her his known aggressive and dangerouspropensities and lameness. After the completion of discovery, Brassard moved for summaryjudgment dismissing the complaint insofar as asserted against her. The Supreme Court, inter alia,granted Brassard's motion. We affirm.
The proponent of a summary judgment motion must make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence in admissible form todemonstrate the absence of any material issues of fact (see Giuffrida v Citibank Corp.,100 NY2d 72, 81 [2003]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Oncethis showing has been made, the burden shifts to the party opposing the motion to produceevidentiary proof in admissible form sufficient to establish the existence of material issues of factthat require a trial for resolution (see Alvarez v Prospect Hosp., 68 NY2d at 324).
Here, Brassard established her prima facie entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against her by demonstrating, through thesubmission of her deposition testimony, the affidavits of Ashley Yozzo, Dana Fitzpatrick, andLou Ann Moore, and the medical records of the horse from Candlewood Equine, that she did notsystematically tranquilize the horse during the course of the plaintiff's lessons, beginning in June2004 and ending October 7, 2004 (see Alvarez v Prospect Hosp., 68 NY2d at 324). Inaddition, Brassard demonstrated, prima facie, that she did not breach any duty to the plaintiff byfailing to disclose or warn her of the horse's alleged violent or aggressive tendencies.
In opposition to Brassard's prima facie showing, the plaintiff failed to raise a triable issue offact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The plaintiffsubmitted the affidavit of Charles Cecil. However, Cecil's affidavit was insufficient to raise atriable issue of fact, as it does not specifically state that to his knowledge the horse had beendrugged, and Cecil's personal experience with the horse does not support the plaintiff's claim ofBrassard's failure to disclose or warn of any alleged violent or aggressive tendencies. Theplaintiff also submitted the deposition testimony of Armando Gomez, which also failed to raise atriable issue of fact. The additional witness statements submitted by the plaintiff, in opposition tothe motion, were unsworn and not in admissible form. Therefore, those witness statements wereinsufficient to raise a triable issue of fact to show that Brassard breached a duty of care to theplaintiff, that the horse suffered from vicious or aggressive propensities, or that Brassard wasresponsible for drugging the horse (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986];Posada v Great Atl. & Pac. Tea Co.,70 AD3d 1019 [2010]; Paez vShah, 78 AD3d 675 [2010]). Mastro, J.P., Angiolillo, Roman and Sgroi, JJ., concur.