DeLong v. County of Chautauqua

46 A.D.3d 1433, 848 N.Y.S.2d 471

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 2007
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Chautauqua County (Timothy J. Walker, A.J.), entered April 18, 2007. The order denied defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint based on plaintiffs alleged failure to comply with a conditional order of preclusion. Defendant failed to meet its initial burden on the motion because its sole supporting affirmation was signed by an attorney different from the attorney who affirmed that the statements therein were true. The affirmation therefore was defective and “insufficient to establish [defendant’s] entitlement to judgment as a matter of law” (Board of Educ. of Town of Webb Union Free School Dist. v Garland Co., 190 AD2d 1020, 1020 [1993]). We further note that defendant failed to meet its initial burden inasmuch as it submitted no evidence of service of notice of entry of the conditional order of preclusion upon plaintiff, and thus the 30-day time period for compliance by plaintiff set forth in the order never began to run. In any event, even assuming, arguendo, that defendant met its initial burden, we conclude on the record before us that the court did not abuse its discretion in denying the motion (see generally Sayomi v Rolls Kohn & Assoc., LLP, 16 AD3d 1069 [2005]). Present— Scudder, P.J., Smith, Centra, Lunn and Peradotto, JJ.