Opinion
June 12, 1995
Appeal from the Supreme Court, Nassau County (Wager, J.).
Ordered that on the Court's own motion Faustina Skinner, as administrator of the estate of Roy Skinner, is substituted as the plaintiff, and the caption is amended accordingly; and it is further,
Ordered that the order and judgment is affirmed; and it further,
Ordered that the respondents appearing separately and filing separate briefs are awarded one bill of costs.
Contrary to the plaintiff's contention, the Supreme Court did not base its decision upon its own assessment of the decedent's credibility, but on the lack of a triable issue of fact as to whether the decedent's trip-and-fall accident occurred on the sidewalk abutting the defendants' property at 162 Sea Cliff Avenue, Glen Cove. In support of their cross motions for summary judgment, the defendants submitted proof that the accident had occurred between two hedges in front of the driveway area between 160 and 158 Sea Cliff Avenue (cf., Zuckerman v. City of New York, 49 N.Y.2d 557, 563). In opposition, the plaintiff submitted only an attorney's affirmation, that was not based upon personal knowledge of the facts. Thus, the Supreme Court properly disregarded it (see, Koump v. Smith, 25 N.Y.2d 287, 300; see also, Matter of O'Hara, 85 A.D.2d 669, 671).
Further, the plaintiff cannot rely upon her decedent's purported deposition testimony indicating the area where he fell because that testimony is not part of the record on appeal (see, Di Blasi v. Caldara, 123 A.D.2d 738; see also, Block v. Nelson, 71 A.D.2d 509, 511). In any event, the purported testimony does not clearly indicate where the decedent fell, and there is no unequivocal indication in the record on appeal that the decedent fell on the sidewalk abutting the defendants' property (see, Matter of O'Hara, supra). As the plaintiff did not meet her burden of establishing the existence of a triable issue of fact as to whether the accident occurred on the sidewalk abutting the defendants' property, the complaint was properly dismissed (see, Jantzen v. Edelman of N.Y., 206 A.D.2d 406; see also, Rosenthal v. Village of Quogue, 205 A.D.2d 745). Bracken, J.P., Balletta, Friedmann and Krausman, JJ., concur.