Ciaccia v. Moore

159 A.D.2d 957, 552 N.Y.S.2d 783, 1990 N.Y. App. Div. LEXIS 3240

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 1990
• Status: Published

Opinion

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 NY2d 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 NY2d 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 NY2d 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 AD2d 853, 854, mod 64 NY2d 1033). (Appeal from order of Supreme Court, Oneida County, Tenney, J.— discovery; summary judgment.) Present/ — Dillon, P. J., Boomer, Green, Balio and Davis, JJ.