| Conti v City of Niagara Falls Water Bd. |
| 2011 NY Slip Op 02204 [82 AD3d 1633] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| James Conti et al., Appellants, v City of Niagara Falls Water Board,Respondent. |
—[*1] Harris Beach PLLC, Buffalo (Kimberly A. Colaiacovo of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.),entered February 26, 2010. The order granted the motion of defendant for summary judgment anddismissed the complaint.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied and the complaint is reinstated.
Memorandum: Plaintiffs commenced this action seeking to recover damages they sustainedas the result of a sewage backup on their property, allegedly caused by defendant's failure tomaintain its sewer system in a proper manner. We conclude that Supreme Court erred in grantingdefendant's motion for summary judgment dismissing the complaint on the ground that it did nothave prior notice of a defective or dangerous condition in the sewer system.
Defendant failed to meet its initial burden of establishing "that it had no notice of adangerous condition [and did not have] reason to believe that the pipes [had] shifted ordeteriorated and [were] likely to cause injury, and that it regularly inspected and maintained thesubject sewer line" (Azizi v Village ofCroton-on-Hudson, 79 AD3d 953, 955 [2010] [internal quotation marks omitted];see generally De Witt Props. v City of New York, 44 NY2d 417, 423-424 [1978]; Fireman's Fund Ins. Co. v County ofNassau, 66 AD3d 823, 824 [2009]). In support of its motion, defendant submitted theaffirmation of its attorney, who averred that defendant "had no notice of a dangerous condition orreason to believe that the pipes had shifted or deteriorated or were likely to cause injury." It iswell established, however, that an affirmation submitted by an attorney who has no personalknowledge of the facts is without evidentiary value (see Deronde Prods. v Steve Gen.Contr., 302 AD2d 989 [2003]). Defendant's reliance on plaintiffs' response to one of itsinterrogatories in support of its motion is equally unavailing. Defendant asked plaintiffs to"[s]tate . . . any and all notice/claims made to [d]efendant[,] including the date,time, place, manner and mode of [such] notice [or claims]." In response thereto, plaintiffsprovided the date that they served the notice of claim upon defendant. Contrary to defendant's[*2]contention, plaintiffs did not thereby concede that defendantlacked actual or constructive notice of the allegedly defective condition of the sewer system.Rather, plaintiffs alleged in their response to other interrogatories that defendant failed "to make. . . timely inspections and repairs to the sewers" near plaintiffs' residence and that"[t]he sinking and eventual collapse of the sewer main . . . were facts known or[that] could have been known with reasonable inspection by [d]efendant."
Although defendant contends that plaintiffs failed to establish that it had notice of adangerous or defective condition in the sewer system, it was defendant's burden on the motion tocome forward with evidence in admissible form establishing its entitlement to judgment as amatter of law (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Defendant's failure to meet its initial burden requires denial of the motion, "regardless of thesufficiency of [plaintiffs'] opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]; see Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]).
In light of our conclusion, we do not address plaintiffs' remaining contentions.Present—Smith, J.P., Peradotto, Lindley, Sconiers and Martoche, JJ.