(dissenting). I respectfully dissent. Third-party defendant Becky Akosah (Akosah) opposed plaintiffs motion for partial summary judgment against defendant and third-party plaintiff Providence Rest Nursing Home (Providence) and defendant Health Care Professionals, Inc. (HCP), and is aggrieved by that portion of the order granting summary judgment to *137plaintiff against Providence on the issue of Providence’s liability under the doctrine of respondeat superior for injuries sustained by plaintiff’s decedent, Anna Demuth, as a result of alleged negligent actions by Akosah.1 Accordingly, Akosah is entitled to appeal from at least that portion of the order (see CPLR 5511; Cabri v ICOS Corp. of Am., 240 AD2d 456, 457 [1997]; see also CPLR 1008 [“The third-party defendant shall have the rights of a party adverse to the other parties in the action, including the right to . . . appeal”]). Like her right to oppose plaintiffs motion, Akosah’s right to prosecute this appeal reflects the “recognition] that the third-party defendant, having been joined as a party who will thereby be bound by the judgment in the main action, will have no other opportunity to establish the absence of liability of the main defendant to the plaintiff’ (Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 1008, at 119).
With one exception, plaintiffs motion for summary judgment rested entirely on hearsay; specifically, it rested on statements assertedly made by Ms. Demuth after she allegedly fell that were recorded by employees of Providence who were not witnesses to the fall. If a person who swore to having heard the statements provided plaintiff with an affidavit reciting them, these out-of-court statements by Ms. Demuth blaming Akosah and offered for the truth of the matters asserted could not serve as a proper predicate for plaintiffs summary judgment motion (La Plante v State of New York, 31 AD2d 570, 570-571 [1968], affd 28 NY2d 575 [1971]). The hearsay character of these statements is not altered merely by the fact — if indeed it is one— that the employees of Providence who recorded them were under a business duty to record them accurately (Matter of Leon RR., 48 NY2d 117, 123 [1979]; see also Brusca v El Al Israel Airlines, 75 AD2d 798, 800 [1980] [alleged statement by defendant’s employee “to the effect that he had heard that the accident occurred in the manner he described” would be inadmissible hearsay “ ‘as then it would only have amounted to an admission that he had heard the statement which he repeated and not to an admission of the facts included in it’ ” (emphasis added)], quoting Reed v McCord, 160 NY 330, 341 [1899]).
In opposition to plaintiffs motion, Akosah submitted only an affirmation from her attorney. In her affirmation, counsel pointed to a handwritten account allegedly given by Akosah to *138Providence that was reproduced in an exhibit to plaintiffs motion. In that statement, counsel correctly observed that Akosah never gave “any indication . . . that [Ms. Demuth] was either dropped to the floor, fell on the floor or that . . . Akosah fell on top of her.” Indeed, a fair reading of the statement is that Akosah assisted Ms. Demuth on the day in question, did not see her fall or otherwise sustain any injuries, and merely knew that an injury somehow had occurred earlier in the day.
If Akosah had put forth her own out-of-court and unsworn statement in opposing the motion, it would have been hearsay. And it would have been insufficient, because hearsay alone is insufficient to demonstrate the existence of a triable fact (see Navedo v 250 Willis Ave. Supermarket, 290 AD2d 246, 247 [2002]). That Akosah’s written statement was included as an exhibit to plaintiffs motion did not justify Akosah’s reliance on it to establish a material issue of fact. That is because plaintiff did not take the position it was an admission by Akosah of the truth of the matters asserted therein. Rather, plaintiffs position was that the statement was relevant only to her claim for punitive damages. Thus, plaintiffs motion contended that Akosah caused Ms. Demuth to go untreated for more than one hour as a result of her false denials shortly after the incident (evidenced by her statement) of her negligence (evidenced by the other proof offered in support of the motion). Accordingly, because plaintiff did not assume the truth of the matters asserted in the statement, Akosah could not assume their truth either.2
With the procedural history and posture of this action in mind, the exception noted above can be discussed more profitably. In her motion, plaintiff placed considerable reliance upon a *139report prepared by Eleanor Flanagan, RN, Providence’s Director of Nursing. Similarly, the decision of the court below, concluding that plaintiff had established there was no material issue of fact that would preclude summary judgment for plaintiff on Providence’s liability for Akosah’s alleged negligence, is predicated almost entirely on Ms. Flanagan’s report. In that report, Ms. Flanagan states that the injuries sustained by Ms. Demuth were caused by Akosah, “who was assigned to the resident and showered her [and] dropped her.” Indeed, Ms. Flanagan goes on to opine on a question of law by concluding that “[t]he care of [Ms.] Demuth by . . . Akosah resulted in negligence to the resident” (emphasis added). Although it is not relevant to my analysis, Ms. Flanagan’s report makes plain (and it is undisputed in any event) that she did not witness the alleged fall either and was herself relying at least in part (and perhaps exclusively) on the account provided by the resident, Ms. Demuth.3
As this Court has stated, “an agent’s written report, made within the scope of his duties, has been received in evidence against his principal even though the report was not based upon the agent’s personal knowledge” (Georges v American Export Lines, 77 AD2d 26, 33 [1980]; see also Cianci v Board of Educ. of City School Dist. of City of Rye, 18 AD2d 930 [1963]). Of course, however, the agent’s statement “is admissible against his employer under the admissions exception to the hearsay rule only if the making of the statement is an activity within the scope of his authority” (Loschiavo v Port Auth. of N.Y. & N J., 58 NY2d 1040, 1041 [1983] [citations omitted]).
Although Ms. Flanagan was authorized to speak on this very matter by her employer, Akosah is neither her employer nor otherwise her principal. Accordingly, Ms. Flanagan’s statements are not admissions by Akosah and could be admissible against her only if some other hearsay exception were applicable or if principles of judicial economy warranted their admission despite the prejudice to Akosah. Unsurprisingly, plaintiff advances no such independent exception and I am not aware of any authority supporting the admission of Ms. Flanagan’s state*140ment against Akosah on judicial economy grounds (i.e., on the ground that they are admissible against Akosah because they are admissible against Providence).
In short, although the parties do not cite any decision of this Court or any other court squarely addressing the issue, the out-of-court statements by Ms. Flanagan when offered against Akosah were nothing more than hearsay (Rivera v City of New York, 293 AD2d 383 [2002] [neither statements by mother nor father of infant plaintiff were admissions]; cf. Candela v City of New York, 8 AD3d 45, 48 n 2 [2004] [noting, in reversing trial court and concluding that out-of-court statement by agent of defendant general contractor was admissible on plaintiffs summary judgment motion against general contractor and other defendants, that “(n)one of the (other) defendants have argued that (general contractor) is the only true principal”]).
The admission of Ms. Flanagan’s statements against Akosah is inconsistent with the rationale justifying the exception to the hearsay rule for admissions by opposing parties. That rationale, of course, is that an extrajudicial statement by a party-opponent which is inconsistent with the party’s position in the litigation is presumptively reliable (see Reed v McCord, 160 NY 330, 341 [1899] [“it is highly improbable that a party will admit or state anything against himself or against his own interest unless it is true”]).
The burden of explaining an admission properly is cast upon the party making it rather than the opponent who seeks to introduce it. Even if Akosah had been able to depose Ms. Flanagan, it hardly would be fair to cast upon her the burden of explaining Ms. Flanagan’s report. Although Ms. Flanagan had a duty to her employer, Providence, to investigate and report accurately on the cause of the injuries sustained by Ms. Demuth, she owed no such duty to Akosah (cf. Cox v State of New York, 3 NY2d 693, 698 [1958] [rejecting admissibility of “so-called admission . . . not made by a party but ... by (one) who has no interest in the outcome of the litigation and thus has no incentive to carefully check the correctness of the statements he makes”]). Indeed, Akosah’s interests are adverse to those of both plaintiff and Providence. As noted above, moreover, CPLR 1008 specifies that a “third-party defendant shall have the rights of a party adverse to the other parties in the action.”
To admit against a third-party defendant an extrajudicial statement made by either a defendant/third-party plaintiff or its authorized agent when the interests of the third-party plaintiff *141and third-party defendant are adverse could encourage mischief and unreliable factual determinations. Consider what third-party plaintiffs reasonably might conclude in some cases involving actual or prospective third-party defendants with deep or at least not empty pockets. A particular third-party plaintiff might conclude that its best prospect for avoiding or reducing its monetary exposure to the plaintiff is to acquiesce in the plaintiffs claim that it is liable as long as the third-party defendant also will be bound by such a liability determination. The third-party plaintiff thus would have an incentive not only hastily and even falsely to “admit” its liability but to defer bringing its third-party complaint until the plaintiffs summary judgment motion is imminent, thereby reducing and perhaps devastating the third-party defendant’s ability to defend its interests. At least some plaintiffs also would have incentives to cooperate with such a strategy by the defendant/third-party plaintiff.4
Of course, neither plaintiff nor defendant/third-party plaintiff will act invariably in such an improper or sharp manner. A plaintiffs right to introduce admissions made by the defendant should not be defeated simply because the interests of the third-party plaintiff and third-party defendant are adverse.
The novel issue presented here is what the trial court should have done given the third-party complaint. Viewed solely as a motion for summary judgment against Providence, the granting of the motion was proper. Plaintiff made a “prima facie showing of entitlement to judgment as a matter of law” on the issue of liability, having “tender[ed] sufficient evidence [the admissions by Providence’s authorized agent, Ms. Flanagan] to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, viewed *142solely as a motion for summary judgment against Akosah, the granting of the motion was improper. Because plaintiff movant failed to meet its “initial burden of setting forth evidentiary facts sufficient to establish entitlement to judgment as a matter of law” (Roman v Hudson Tel. Assoc., 15 AD3d 227, 228 [2005]), there was “no necessity for the opposing party [Akosah] to respond with evidentiary proof’ (id. [citation omitted]).
Put differently, the question might be: what effect, if any, should be given to the prior strategic decisions made by the parties to the main action? Plaintiff could argue that the motion should be viewed as having been brought against Providence and that her right to summary judgment against Providence should not be affected adversely by Providence’s unilateral decision to commence a third-party action against Akosah. Akosah, however, could argue that the motion should be viewed as having been brought against her, and that her right to a trial on the issue of her negligence should not be affected adversely by plaintiff’s unilateral decision to commence the main action against Providence only. Indeed, Akosah could argue as well that as the only party not to have made such a prior strategic decision, she should not be the party whose rights should be adversely affected by the particular procedural posture of the case.
In any event, in my judgment, CPLR 1010 provides the answer to the question of what the trial court should have done. It authorizes the court, inter alia, to “order a separate trial of the third-party claim or of any separate issue thereof, or make such other order as may be just.” Moreover, as CPLR 1010 goes on to provide, “[i]n exercising its discretion, the court shall consider whether the controversy between the third-party plaintiff and the third-party defendant will . . . prejudice the substantial rights of any party.”
If the court had issued an order both granting plaintiffs motion for summary judgment and directing a separate trial of the third-party claim, the substantial rights of plaintiff and Akosah would have been preserved. This Court, as a division of the Supreme Court, is authorized to take whatever action the court below should have taken in resolving the summary judgment motion (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]).
In my opinion, the order that would “be just” (CPLR 1010) that the court should have made is an order granting plaintiffs motion for summary judgment and ordering “a separate trial of *143the third-party claim” (id.). Accordingly, I would modify the order appealed to the extent of severing the third-party action and otherwise affirming the grant of summary judgment to plaintiff. I note that such a modification also would comport with the principle that an appellate court should not grant relief to a nonappealing party unless it is necessary to the granting of full relief to an appealing party (see Sharrow v Dick Corp., 86 NY2d 54, 62 [1995]; Hecht v City of New York, 60 NY2d 57, 62 [1983]).
That is not to say, however, that a third-party defendant in Akosah’s position can never be required to come forward and lay bare its proof with evidentiary facts. After all, impleader conserves both public and private resources, and avoids inconsistent adjudications. Given the unique facts of this case — the ambiguity in plaintiff’s motion concerning whether Akosah’s out-of-court statements were being offered for the truth of the matters asserted and the timing of the summary judgment motion relative to the filing of the third-party complaint against Akosah — I would sever the third-party action without prejudice to a subsequent motion to consolidate if Akosah’s negligence is established by Providence.
The majority’s various arguments on the hearsay issues presented by this case are irrelevant. The majority’s extended discussion of the “speaking agent” exception to the hearsay rule and Brusca v El Al Israel Airlines (75 AD2d 798 [1980]) is irrelevant. I have no quarrel with the notion that under the “speaking agent” exception to the hearsay rule the statements of Ms. Flanagan can be admissions regardless of whether they are based on her personal knowledge. The crucial point, one the majority does not even mention let alone discuss, is that at most those statements would constitute admissions of Ms. Flanagan’s employer and principal, Providence, and not Akosah. The “speaking agent” here is not an agent of Akosah but an agent of a principal that is seeking to cast liability on Akosah.
The majority’s reliance on Nurse Fitzgerald’s written statement as an admission by her employer, Providence, is irrelevant for the same reason. As to Akosah, it is hearsay. The majority’s argument that it also was admissible as a “business record” of Providence is both wrong and irrelevant. The only relevant statements in the statement are those made by Ms. Demuth and recorded by Nurse Fitzgerald. The venerable rule of Johnson v Lutz (253 NY 124 [1930]) bars the admission of the statements by Ms. Demuth (see e.g. Matter of Leon RR., 48 NY2d *144117, 122 [1979] [“each participant in the chain producing the record, from the initial declarant to the final entrant, must be acting within the course of regular business conduct or the declaration must meet the test of some other hearsay exception” (citations omitted)]).5 I note, moreover, that the statements by Ms. Demuth do not in any event identify Akosah as the one who allegedly fell on her. The other statements in Nurse Fitzgerald’s written statement certainly appear to be admissible under the “business record” exception to the hearsay rule, but they do not have the slightest relevance to the question of whether Providence or Akosah negligently caused the injuries to Ms. Demuth.
In relying on the deposition testimony of Ms. English, the majority indulges in what can only be described, albeit with understatement, as impressive hyperbole. After summarizing the deposition, the majority concludes that it, along with the chart from Providence’s Accountability Book, “conclusively established the nursing home’s negligence.” In fact, it establishes nothing at all bearing on Providence’s negligence. Indeed, although the majority states in referring to that testimony that Ms. English “did not know exactly how the accident happened” (emphasis added), Ms. English did not have any personal knowledge at all about how the accident happened, and did not give any testimony establishing that an accident had occurred that was caused by Providence’s negligence. Her only testimony relating to an accident was premised exclusively on the hearsay statement of Ms. Demuth — “reported to” Ms. English by the “incoming nurse” — that Ms. Demuth “had called her and told her that someone had dropped her and fell on top of her.” Obviously, a patient in a nursing home can get out of bed and fall on his or her own, and the hearsay statement of Ms. Demuth does not establish, let alone conclusively establish, even that someone had dropped her and fallen on her. For the same reason, it does not establish anything about the cause of the injuries to Ms. Demuth, and certainly not that Ms. Demuth “had not been transferred safely ... in violation of hospital protocol.”
Like the majority’s reliance on Ms. Flanagan’s report and Nurse Fitzgerald’s written statement, the majority’s reliance on the deposition testimony of Ms. English is irrelevant. Ms. English’s deposition testimony unquestionably would be admissible against defendants Providence and HCP, because these parties were present at her deposition, taken by plaintiff, and *145their representatives cross-examined Ms. English. Akosah, however, was not represented by anyone at the deposition for the simple reason that Providence had not yet brought its third-party action against her. Regardless of whether the attorneys for Providence and HCP believed that vigorous cross-examination of Ms. English would further the interest of their clients,6 it cannot be doubted that Akosah’s attorney might have concluded it was a matter of some moment. In short, the majority’s reliance on the deposition testimony of Ms. English serves only to underscore the importance of resolving the novel issue presented by these unusual circumstances: whether, given that Akosah would be bound by the determination that Providence was liable for the injuries to Ms. Demuth because of Akosah’s alleged negligence, the motion for summary judgment should be viewed as one against Akosah that was premised solely on hearsay.
The majority’s reliance on Akosah’s own statement is confounding. According to the majority, “her statement . . . was legitimate for the court’s consideration as an ‘admission against interest’ ” (citation omitted). The short and complete answer to that is the one previously given by plaintiff in her reply submission on the motion. As noted above, plaintiff made clear she was not relying on the statement for the truth of anything asserted therein and expressly stated that “plaintiff did not rely upon [the Akosah] statement in support of her motion for summary judgment . . . .” Indeed, and ironically given the majority’s reliance on Nurse Fitzgerald’s written statement and the deposition testimony of Ms. English, plaintiffs counsel immediately went on to state that it relied not upon the Akosah statement “but rather the statement of Defendant, Providence Rest Nursing Home, Director of Nursing, Eleanor M. Flanagan [i.e., the Flanagan report].”7
Thus, the majority changes the rules in the middle of the game. Despite plaintiffs express disavowal in prior proceedings of any reliance on the Akosah statement for the truth of mat*146ters asserted therein, the majority relies on it as an admission “which was legitimate for the court’s consideration.”
Even if that were permissible for some inexplicable reason, the majority’s reliance on the statement would still be misplaced. According to the majority, the statement can fairly be read to constitute an admission by Akosah of “a breach of the nursing home’s duty to provide Ms. Demuth, a high-risk patient, with the designated level of care.” This is ostensibly so because in the statement Akosah effectively “concedes that she was transferring Ms. Demuth alone.” But putting aside for the moment that the statement concedes no such thing, that conduct— breach of duty though it may be — did not cause any injury to Ms. Demuth. Ms. Akosah, after all, does not go on to state that Ms. Demuth fell while she was “transferring” her. Moreover, even assuming that the statement can be considered substantively, for the truth of matters asserted therein, Akosah conceded only that she attempted to transfer Ms. Demuth without assistance from her bed to a chair she placed “right to the end of the bed on the left side.” When Ms. Demuth stated she “couldn’t make it to the chair,” Akosah stated she asked a nurse to help her put Ms. Demuth “in the chair of [sic] which we did.”8
Finally, or nearly so, the majority both misses the point and contradicts itself in: (1) stating that this appeal must not be decided “upon speculation as to the effect [its] decision may *147have on the third-party action,” (2) pronouncing it “curious” to conclude that the grant of summary judgment was improper if viewed solely as a motion against Akosah, because “the only motion was for summary judgment against defendant Providence,” and (3) its various assertions to the effect that Akosah’s “liability [is] not at issue in the order appealed,” “[her] rights in the third-party action have not been irreparably compromised by . . . affirmance of plaintiffs motion for summary judgment against Providence,” Akosah “will have the opportunity to conduct discovery ... to counter any admissible allegations of her negligence” and her “liability is not inextricably tied to a finding that the nursing home was negligent for not caring properly for Ms. Demuth.”
The majority contradicts itself, for it correctly recognizes elsewhere in its opinion that Akosah “is an aggrieved party, and under CPLR 1008, she has a right to appeal.” If the consequences for Akosah of the grant of summary judgment are as benign as the majority posits, two things are “curious” indeed: (1) that the Legislature would accord third-party defendants the right to appeal under these circumstances, and (2) that Akosah would go to the time, trouble and expense of appealing to this Court.
The consequences to Akosah both of the grant of plaintiffs motion for summary judgment in the main action and of affirmance by this Court are not benign. To the contrary, as the Practice Commentaries previously quoted state — and with respect to which the majority offers no comment — Akosah’s right to prosecute this appeal reflects the “recognition] that the third-party defendant, having been joined as a party who will thereby be bound by the judgment in the main action, will have no other opportunity to establish the absence of liability of the main defendant to the plaintiff’ (Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 1008, at 119). In this case, the “judgment” in the main action at issue is the order granting summary judgment and determining that Providence is liable to plaintiff; that order, in turn, rests on two essential, actually litigated determinations: (1) that Akosah negligently caused Ms. Demuth’s injuries, and (2) that Providence was Akosah’s employer and thus is responsible for her tortious conduct under the doctrine of respondeat superior. Akosah is not aggrieved by the second determination, but she is aggrieved by the first because collateral estoppel principles will preclude her from relitigating that issue in Providence’s action *148against her after she litigated and lost exactly that issue in opposing plaintiffs motion (see e.g. Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984] [“(t)he doctrine of collateral estoppel. . . precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity”]; id. at 500-501 [to be given preclusive effect, “the issue must have been material to the first action or proceeding and essential to the decision rendered therein . . . and it must be the point actually to be determined in the second action or proceeding” (citations omitted)]). If no court had expressly so held, that would make the issue in this case all the more novel. But it would not undermine the conclusion that Akosah will be bound by what was necessarily determined on the motion.
One last point should be made. “Article I, § 2 of the New York Constitution provides that ‘[t]rial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever’ ” (Matter of DES Mkt. Share Litig., 79 NY2d 299, 304 [1992]). Although the entry of summary judgment against a litigant hardly establishes a violation of that constitutional right, “[s]ince it deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues” (Andre v Pomeroy, 35 NY2d 361, 364 [1974] [citation omitted]). To grant summary judgment against Providence and thereby deprive it of its day in court solely on the basis of hearsay clearly would be improper (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Republic Natl. Bank of N.Y. v Luis Winston, Inc., 107 AD2d 581 [1985]). Yet, the majority countenances depriving Akosah of her day in court solely on the basis of hearsay, even though she had virtually no opportunity to exercise her rights to engage in discovery. To be sure, there is nothing improper about applying the collateral estoppel doctrine to a litigant who was not a party to the prior action even though the litigant thereby is deprived of his day in court. But doing so is proper, precisely because the party to the prior action who litigated the issue and lost had a full and fair opportunity to litigate the issue and the collaterally estopped litigant is sufficiently aligned in interest with the losing party in the prior action as to be in “privity” with the losing party (see Buechel v Bain, 97 NY2d 295, 304-305 [2001], cert denied 535 US 1096 [2002]). Here, in utter contrast, only Providence and not Akosah had a full and fair opportunity to litigate the sum*149mary judgment motion, and the interests of Providence and Akosah are adverse in material respects.9
In sum, nothing in the majority’s analysis undercuts my conclusion that under the unusual circumstances of this case the order from which Akosah but not Providence appeals should be modified to the extent of severing the third-party action and otherwise affirmed.
Tom, J.P and Catterson, J., concur with Mazzarelli, J.; Friedman and McGuire, JJ., dissent in a separate opinion by McGuire, J.
Order, Supreme Court, Bronx County, entered August 11, 2004, affirmed, without costs.
. Although the caption in the main action refers to plaintiffs, there is only one plaintiff, Nancy Giandana, who assertedly brings the action both individually and as the administratrix of the estate of Ms. Demuth.
. Although the affirmation from Akosah’s counsel does not explain why an affidavit from Akosah was not submitted, counsel apparently believed plaintiff was offering Akosah’s out-of-court statements for the truth of the matter asserted. That belief was reasonable, especially given that plaintiff did not make clear until she filed her reply papers on the motion that she was disclaiming reliance on the statements as an admission by Akosah. Moreover, it is worthy of note that plaintiffs summary judgment motion was brought only three months after the date of Providence’s third-party complaint against Akosah and less than one month after the date of Akosah’s answer to the third-party complaint. By contrast, the motion was brought against Providence (and served of course on Akosah) some two years and three months after the date of plaintiffs original complaint against Providence. Akosah had virtually no opportunity to engage in discovery prior to opposing plaintiffs summary judgment motion; plaintiff and Providence had engaged in extensive discovery during the more than two years following the filing of the original complaint.
. It is not necessary to the resolution of this appeal to determine whether Ms. Flanagan’s conclusion on the ultimate issue of negligence was admissible against Providence (cf. Eagleston v Guido, 41 F3d 865, 874 [2d Cir 1994], cert denied 516 US 808 [1995] [extrajudicial statements by municipal official amounting to “legal conclusions concerning an ultimate issue in the case” not admissible against municipality as a party admission under Federal Rules of Evidence rule 801 (d) (2)]).
. It is worthy of note that Providence’s opposition was premised entirely on the contention that Akosah was an independent contractor and thus it was not liable for her conduct, which Providence asserted both was negligent and was as described in the out-of-court statements made by Ms. Demuth. Moreover, Providence did not commence its third-party action against Akosah for more than two years after plaintiff commenced the action against it, despite its apparent awareness on the date of the alleged fall of all the relevant facts concerning the conduct by Akosah it contends was negligent. I do not conclude, however, either that Providence’s opposition to plaintiffs summary judgment motion reflected anything other than an honest appraisal of its legal position on the facts known to it, or that it intentionally delayed its third-party action in an attempt to prejudice Akosah. Providence has not been asked to explain either its position or the delay, and it obviously would be unfair to assume it acted improperly.
. Plaintiff has never argued, nor does the majority suggest, that the statements by Ms. Demuth pass muster under some other hearsay exception.
. Perhaps not coincidentally, counsel for Providence posed only four questions to Ms. English (one of which asked her if she had understood the prior question) and the deposition occurred less than three months before the date of Providence’s third-party complaint against Akosah.
. This irony is compounded by what plaintiffs counsel went on to state after quoting from the Flanagan report: “This admission, relied upon by Plaintiff in support of her motion for summary judgment is not that of the Third-Party Defendant, Becky Akosah, but rather that of the answering Defendant, Providence Rest Nursing Home.” Just so.
. To repeat, on any fair reading of the statement as a whole, Akosah was saying that although she assisted Ms. Demuth, she did not see her fall or know how she sustained any injuries. Thus, if the majority were correct in considering the statement for its truth, the grant of summary judgment should be reversed because plaintiffs own motion papers thereby would raise a material issue of fact with respect both to how Ms. Demuth’s injuries were caused and who caused them (see e.g. Oliverio v Lawrence Pub. Schools, 23 AD3d 633, 634 [2005] [summary judgment movants’ own submission demonstrated the existence of material issues of fact precluding grant of motion]; see also Speller v Sears, Roebuck & Co., 100 NY2d 38, 44 [2003] [“the court’s role in adjudicating a motion for summary judgment... is issue identification, not issue resolution”]). To this, the majority offers no response. Nor does the majority dispute that Akosah’s counsel reasonably may have believed that plaintiff had offered Akosah’s alleged out-of-court statements for the truth of the matters asserted. And despite its apparent recognition that Akosah had virtually no opportunity to engage in discovery, the majority faults Akosah for failing “to explain, if she had relevant knowledge, how the decedent was injured.” The majority thus ignores the critical point: if it is proper to consider Akosah’s statements for the truth of the matters asserted, what she is asserting is precisely that she had no relevant knowledge of how Ms. Demuth was injured. And if that is true, why Akosah nonetheless is'liable for Ms. Demuth’s injuries is a puzzlement.
. I recognize of course that it will be open to Akosah in subsequent proceedings to argue that she is not collaterally estopped from relitigating the determination that she negligently caused Ms. Demuth’s injuries on the ground that she did not have a full and fair opportunity to litigate the issue (see Buechel v Bain, 97 NY2d at 304). It will be her burden, however, to show that she did not have such an opportunity (id.). Absent a determination by this Court to the effect that she did not, she well may find it difficult to meet that burden. She should not, in any event, have to shoulder it.