Casteneda v. Rubell

170 A.D.2d 205

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 1991
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Jack Turret, J.), entered September 13, 1989, which denied defendants’ motion for summary judgment, unanimously reversed, on the law, the motion for summary judgment granted and the complaint dismissed, without costs. The clerk is directed to enter judgment in favor of defendants dismissing plaintiffs’ complaint.

This is a negligence action. The complaint alleges that on or about November 28, 1985, the infant plaintiff "was caused to fall” because of the negligence of the defendants. The defendants moved for summary judgment dismissing the complaint on the grounds that the defendant University had sold the premises more than three weeks prior to the accident and had no control over the premises. In response, the plaintiffs submitted only an affidavit by an attorney with no knowledge of the facts, accompanied by photographs, alleging that the defendant University had created a defective walkway condition which the infant plaintiff tripped over. There was no affidavit by someone with knowledge supporting either the conclusion as to the said defendant’s creation of the condition or the way in which the accident occurred. Accordingly, summary judgment should have been granted. Concur—Kupferman, J. P., Carro, Kassal, Ellerin and Smith, JJ.