Dunster v. City of Rome

129 A.D.2d 972, 514 N.Y.S.2d 285, 1987 N.Y. App. Div. LEXIS 45628

Opinion

Order unanimously reversed on the law without costs and motion granted. Memorandum: Special Term erred in not granting defendant City of Rome’s motion for summary judgment. Plaintiffs papers in opposition to defendant’s motion were defective in that they failed to set forth any evidentiary facts that plaintiff had been injured by active negligence of the municipality. Concededly, no prior written notice of the alleged defect was received by defendant as was required by section 176 (1) of the city’s charter and therefore, absent an evidentiary showing of active negligence on the part of defendant, plaintiff is unable to defeat defendant’s motion (see, D'Imperio v Village of Sidney, 14 AD2d 647, affd 12 NY2d 927; Zimerman v City of Niagara Falls, 112 AD2d 17; Drzewiecki v City of Buffalo, 51 AD2d 870). The mere conclusory allegation of negligence contained in plaintiffs counsel’s affidavit, made without personal knowledge of the facts, was without probative value and hence, insufficient to defeat defendant’s motion for summary judgment (see, Hugelmaier v Town of Sweden, 101 AD2d 995, 996; Rubin v Rubin, 72 AD2d 536, 537; Di Sabato v Soffes, 9 AD2d 297). (Appeal from order of Supreme Court, Oneida County, Tenney, J.—summary judgment.) Present—Callahan, J. P., Denman, Balio, Lawton and Davis, JJ.