Hebblethwaite v. Town of Amherst

Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), entered October 6, 2004 in a personal injury action. The order granted the motion of defendant for summary judgment dismissing the amended complaint. 1295 It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff commenced this action to recover damages for injuries he sustained in an accident at a park located in defendant town. Supreme Court properly granted defendant’s motion for summary judgment dismissing the amended complaint. Defendant met its initial burden on the motion “by demonstrating that any determination as to how the accident occurred would be based upon speculation” (Teplitskaya v 3096 Owners Corp., 289 AD2d 477, 478 [2001]; see Hennington v Ellington, 22 AD3d 721 [2005]). In opposition to the motion, plaintiff submitted the affidavit of his attorney containing the hearsay account of a witness who was physically unable to sign his name to an affidavit. Even assuming, arguendo, that the hearsay account may be considered in opposition to the motion (see Habinc v McTaggart, 54 AD2d 799, 800 [1976]; see generally Grasso v Angerami, 79 NY2d 813 [1991]), we conclude that it is insufficient to raise an issue of fact to defeat defendant’s entitlement to summary judgment. Present—Pigott, Jr., P.J., Green, Kehoe, Gorski and Smith, JJ.