Lyndaker v. Sherwin Williams, Inc.

Memorandum: Special Term erred in denying defendant’s motion for summary judgment. In this action for personal injuries, the complaint alleges that plaintiff was caused to fall in a hole in the sidewalk allegedly created or permitted to exist because of the negligence of the village. Defendant village moved for summary judgment on the ground that Local Laws, 1978, No. 2 requires that prior written notice of a defect be given as a condition precedent to an action against the village, and no such notice had been given. Defendant also avers that no action by village employees created the allegedly dangerous condition. The motion papers contained sworn depositions by village employees supporting these contentions. Plaintiff submitted no affidavits or any evidence in admissible form to controvert the motion for summary judgment and, indeed, concedes that there was no written notice of the alleged defect in the sidewalk as required by Local Laws, 1978, No. 2. The only opposition to the motion was an unsworn memorandum of law submitted by plaintiff’s attorney. This is patently insufficient to defeat the motion and should 980 not have been included as a part of the record. Even if we were to consider this memorandum, "[t]he mere conclusory allegation of negligence contained in plaintiffs counsel’s affidavit, made without personal knowledge of the facts, was without probative value and hence, insufficient to defeat defendant’s motion for summary judgment” (Dunster v City of Rome, 129 AD2d 972; see also, Zimmerman v City of Niagara Falls, 112 AD2d 17). (Appeal from order of Supreme Court, Lewis County, Inglehart, J. — summary judgment.) Present— Doerr, J. P., Denman, Boomer, Pine, Davis, JJ.