Valenti v. Purdy

—In an action to recover property damage resulting from a fire, defendants Karen Ryan and Barbara Menke appeal, as limited by their briefs, from so much of an order of the Supreme [1020] Court, Orange County, dated August 22, 1978, as denied their motion and cross motion, respectively, for summary judgment as to them. Order reversed insofar as appealed from, on the law, with one bill of $50 costs and disbursements, and appellants’ motion and cross motion for summary judgment are granted. In order to defeat a motion for summary judgment the opponent must present evidentiary facts sufficient to raise a triable issue, and averments merely stating conclusions, are insufficient (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285). An opposing affidavit of an attorney without personal knowledge of the facts has no probative value and should be disregarded (Chickering v Colonial Life Ins. Co., 51 AD2d 566). In the instant action plaintiffs failed to come forth with any evidence indicating the cause of the fire. The sole- opposition to appellants’ motions was in the form of an affidavit of plaintiffs’ attorney indicating that he intended to call an expert who would testify that a mattress in the house was in a smoldering condition for a period of five or six hours before the fire was discovered. No allegation was made that the expert would testify concerning the cause of the smoldering mattress. In fact, the precise cause of the fire was left to conjecture. Furthermore, no evidence was offered to refute the sworn testimony of either appellant. Under these circumstances we hold that plaintiffs’ opposing papers were insufficient to raise any factual issues and the motion and cross motion for summary judgment should have been granted. Lazer, J. P., Gulotta, Cohalan and Martuscello, JJ., concur.