Opinion
2012-05-23
Denise L. WINTER, respondent, v. Kelly M. BLACK, appellant.
Russo, Apoznanski & Tambasco (Picciano & Scahill, P.C., Westbury, N.Y. [*910 Frances J. Scahill and Andrea E. Ferrucci], of counsel), for appellant. Rappaport, Glass, Levine & Zullo, LLP (Alexander J. Wulwick, New York, N.Y., of counsel), for respondent.
Russo, Apoznanski & Tambasco (Picciano & Scahill, P.C., Westbury, N.Y. [*910 Frances J. Scahill and Andrea E. Ferrucci], of counsel), for appellant. Rappaport, Glass, Levine & Zullo, LLP (Alexander J. Wulwick, New York, N.Y., of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Mayer, J.), dated June 1, 2011, which granted the plaintiff's motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.
To be entitled to summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 852, 487 N.Y.S.2d 316, 476 N.E.2d 642). On a motion for summary judgment, a “bare affirmation of an attorney, who demonstrates no personal knowledge of the matter, is unavailing and without evidentiary value” ( Bahlkow v. Greenberg, 185 A.D.2d 829, 831, 587 N.Y.S.2d 661; see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718; Mobil Oil Corp. v. Penna, 139 A.D.2d 501, 526 N.Y.S.2d 849).
On her motion for summary judgment on the issue of liability, the plaintiff's arguments regarding how the accident occurred were supported only by the affirmation of her attorney, who had no personal knowledge of the facts. Under such circumstances, the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law. Accordingly, her motion for summary judgment should have been denied, regardless of the sufficiency of the opposition papers ( see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Mackenzie v. City of New York, 81 A.D.3d 699, 700, 916 N.Y.S.2d 511; Todd v. Godek, 71 A.D.3d 872, 873, 895 N.Y.S.2d 861; Gjokaj v. Fox, 25 A.D.3d 759, 760, 809 N.Y.S.2d 156).
The plaintiff's remaining contentions either are without merit or need not be reached in light of our determination.