Sarate v. Garcia , 708 N.Y.S.2d 323 ( 2000 )

—In an action to recover damages for personal injuries, etc., plaintiffs appeal from (1) a transcript of the Supreme Court, Kings County (R. Goldberg, J.), dated August 31, 1999, and (2) a judgment of the same court, entered January 13,1999, which, upon an order of the same court dated October 19, 1998, granting the defendant’s motion for summary judgment dismissing the complaint, dismissed the complaint.

Ordered that the appeal from the transcript is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that the defendant is awarded one bill of costs.

The appeal from the transcript must be dismissed, as it is not a paper from which an appeal can be taken (see, Dorizas v Island Insulation Corp., 254 AD2d 246; CPLR 5512 [a]).

The determination of the Supreme Court that the infant witness could not be sworn and that his statement was inadmissible was a provident exercise of discretion (see, Olshansky v Prensky, 185 App Div 469).

The Supreme Court, moreover, properly granted the defendant’s motion for summary judgment dismissing the complaint. After the defendant made a prima facie showing of his entitlement to summary judgment as a matter of law, the plaintiffs failed to meet their burden of producing evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial of the action (see, Zuckerman v City of New York, 49 NY2d 557, 562; Mitchell v New York City Hous. Auth., 267 AD2d 285). Goldstein, J. P., Florio, Feuerstein and Schmidt, JJ., concur.