
    (August 25, 2005)
    In the Matter of New York City Asbestos Litigation. Theodore Klopsis, et al., Respondents, v A.O. Smith Water Products Co., et al., Defendants, and The Goodyear Tire & Rubber Company, Appellant.
    [800 NYS2d 388]
   Order Supreme Court, New York County (Helen E. Freedman, J.), entered on or about August 25, 2004, which denied defendant Goodyear’s motion for summary judgment, and order, same court and Justice, entered November 22, 2004, which granted Goodyear’s motion to reargue but adhered to the prior ruling, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed as against Goodyear. The Clerk is directed to enter judgment in favor of Goodyear dismissing the complaint as against it.

The motion court’s decision rested solely on testimony by a deponent who has since died, in a case to which Goodyear was not a party (see CFLR 3117 [a] [3] [i]). Evidence that would not be admissible at trial may be considered in opposition to a summary judgment motion only “as long as it does not become the sole basis for the court’s determination” (see Oken v A.C. & S., 7 AD3d 285, 285 [2004]).

Reargument granted and, upon reargument, the decision and order of this Court entered herein on March 3, 2005 (16 AD3d 125 [2005]) is hereby recalled and vacated and a new decision and order substituted therefor. Concur—Buckley, P.J., Mazzarelli, Ellerin, Williams and Sweeny, JJ.  