Sheahan v. County of Suffolk

109 A.D.2d 832, 486 N.Y.S.2d 356, 1985 N.Y. App. Div. LEXIS 47342

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 1985
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries arising out of an automobile accident, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Orgera, J.), dated January 17, 1984, as granted the motion of defendant Town of Huntington and the cross motion of the County of Suffolk for summary judgment.

Order affirmed insofar as appealed from, with one bill of costs.

The affidavits based upon personal knowledge which were submitted by respondents clearly establish that respondents did not exercise any degree of control over New York State Route 495 and therefore had assumed no duty with respect to vehicles left abandoned upon the highway shoulder. Plaintiff’s submission of his attorney’s affirmation, which was not predicated upon personal knowledge, wholly failed to controvert the evidence of respondents. Mere unsubstantiated allegations of negligence by an attorney are insufficient to defeat a motion for summary judgment (see, Zuckerman v City of New York, 49 NY2d 557). Plaintiff thus failed to raise any triable issues of fact. Accordingly, we affirm the order insofar as appealed from. Lazer, J. P., Gibbons, Thompson and Niehoff, JJ., concur.