| Brown v Smith |
| 2011 NY Slip Op 04959 [85 AD3d 1648] |
| June 10, 2011 |
| Appellate Division, Fourth Department |
| Shenice Brown, an Infant, by her Parent and Natural Guardian,Frances Brown, Respondent, v Osamarina V. Smith, as Administratrix of the Estate of WilliamH. Smith, Deceased, Defendant, and George Powell, as Executor of Sarah Shultz Stuver,Deceased, Appellant. |
—[*1] Thornton & Naumes, LLP, Rochester (David J. McMorris of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.),entered April 20, 2010 in a personal injury action. The order, insofar as appealed from, deniedthe motion of defendant George Powell, in his representative capacity as executor of the estate ofSarah Shultz Stuver, deceased, for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: The infant plaintiff commenced this action seeking damages for injuries sheallegedly sustained as a result of her exposure to lead paint while residing in a house rented to hermother by George Powell (defendant), as executor of the estate of Sarah Shultz Stuver. SupremeCourt properly denied defendant's motion for summary judgment seeking dismissal of thecomplaint against him. Defendant failed to meet his initial burden of establishing that he did nothave actual or constructive notice of the lead-paint condition (see Harden v Tynatishon, 49 AD3d 604, 605 [2008]; Vidal vRodriquez, 301 AD2d 517, 518 [2003]; Alexander v Westminster Presbyt. Church,291 AD2d 813, 813-814 [2002]; see generally Chapman v Silber, 97 NY2d 9, 15 [2001]).In support of his motion, he submitted only the pleadings, an affirmation of his attorney, and amemorandum of law. "It is well established, however, that an affirmation submitted by anattorney who has no personal knowledge of the facts is without evidentiary value" (Conti v City of Niagara Falls WaterBd., 82 AD3d 1633, 1634 [2011]), and that a memorandum of law also has noevidentiary value and, indeed, is properly included in a record on appeal for the sole purpose ofestablishing that an issue has been preserved for our review (see [*2]generally Matter of Lloyd v Town of Greece Zoning Bd. ofAppeals [appeal No. 2], 292 AD2d 818 [2002]). It is also well settled that, in seekingsummary judgment dismissing a complaint, "[a] moving party must affirmatively establish themerits of [his or her] . . . defense and does not meet [his or her] burden by notinggaps in [the] opponent's proof" (Orcutt v American Linen Supply Co., 212 AD2d 979,980 [1995]; see Frank v Price Chopper Operating Co., 275 AD2d 940 [2000]). Althoughin his brief on appeal defendant relies on evidence submitted by plaintiff in opposition to themotion, i.e., plaintiff's deposition testimony, we do not consider that deposition testimony indetermining the merits of defendant's motion inasmuch as he failed to meet his initial burden ofproof (see Larkin v Rochester Hous.Auth., 81 AD3d 1354, 1355 [2011]). Defendant's failure to do so requires denial of themotion, regardless of the sufficiency of the opposing papers (see generally Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). Present—Centra, J.P., Peradotto, Lindley andSconiers, JJ.