Buffalo Retired Teachers 91-94 Alliance v. Buffalo Teachers Federation, Inc.

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendants’ motion for summary judgment dismissing the first, third and fourth causes of action alleging that defendants breached their duty of fair representation. In support of the motion, defendants submitted only an affidavit of counsel, which refers to a memorandum that is not part of the record. Defendants failed to meet their “initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, * * * showing that the cause of action has no merit” (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967; see, McGowan v Villa Maria Coll., 185 AD2d 674, 675). The failure of defendants to establish as a matter of law that they did not breach their duty of fair representation “requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). (Appeal from Order of Supreme Court, Erie County, Mintz, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Callahan and Fallon, JJ.