Opinion
March 16, 1990
Appeal from the Supreme Court, Oneida County, Tenney, J.
Present — Dillon, P.J., Boomer, Green, Balio and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court's denial of defendants' cross motion for summary judgment should be affirmed. The papers submitted by defendants in support of their motion consisted of the summons and complaint, the verified answer and an affidavit of counsel, not based upon his personal knowledge. "To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067). It is well established that an affidavit or affirmation of an attorney, not based upon personal knowledge, "is without evidentiary value and thus unavailing" (Zuckerman v City of New York, 49 N.Y.2d 557, 563). Moreover, the failure of the proponent of a summary judgment motion to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the motion, regardless of the sufficiency of the opposing papers (see, Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853).
Further, defendants failed to preserve for our review their challenge to plaintiffs' alleged untimeliness in submitting their proposed order to Supreme Court for signature because they did not raise the issue in that court (see, Arvantides v Arvantides, 106 A.D.2d 853, 854, mod 64 N.Y.2d 1033).