SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

815 

CA 11-00168 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.

 

 

SHENICE BROWN, INFANT, BY THE PARENT AND 

NATURAL GUARDIAN, FRANCES BROWN, 

PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

OSAMARINA V. SMITH, IN HER REPRESENTATIVE 

CAPACITY AS ADMINISTRATRIX OF THE ESTATE OF 

WILLIAM H. SMITH, DECEASED, DEFENDANT,

AND GEORGE POWELL, IN HIS REPRESENTATIVE 

CAPACITY AS EXECUTOR OF THE ESTATE OF 

SARAH SHULTZ STUVER, DECEASED, 

DEFENDANT-APPELLANT. 

 

HANCOCK & ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR

DEFENDANT-APPELLANT. 

THORNTON & NAUMES, LLP, ROCHESTER (DAVID J. MCMORRIS OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Monroe County (Matthew

A. Rosenbaum, J.), entered April 20, 2010 in a personal injury action. 

The order, insofar as appealed from, denied the motion of defendant

George Powell, in his representative capacity as executor of the

estate of Sarah Shultz Stuver, deceased, for summary judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs. 

Memorandum: The infant plaintiff commenced this action seeking

damages for injuries she allegedly sustained as a result of her

exposure to lead paint while residing in a house rented to her mother

by George Powell (defendant), as executor of the estate of Sarah

Shultz Stuver. Supreme Court properly denied defendant’s motion for

summary judgment seeking dismissal of the complaint against him. 

Defendant failed to meet his initial burden of establishing that he

did not have actual or constructive notice of the lead-paint condition

(see Harden v Tynatishon, 49 AD3d 604, 605; Vidal v Rodriguez, 301

AD2d 517, 518; Alexander v Westminster Presbyt. Church, 291 AD2d 813,

813-814; see generally Chapman v Silber, 97 NY2d 9, 15). In support

of his motion, he submitted only the pleadings, an affirmation of his

attorney, and a memorandum of law. “It is well established, however,

that an affirmation submitted by an attorney who has no personal

knowledge of the facts is without evidentiary value” (Conti v City of
-2- 815 

CA 11-00168 

Niagara Falls Water Bd., 82 AD3d 1633, 1634), and that a memorandum of

law also has no evidentiary value and, indeed, is properly included in

a record on appeal for the sole purpose of establishing that an issue

has been preserved for our review (see generally Matter of Lloyd v

Town of Greece Zoning Bd. of Appeals [appeal No. 2], 292 AD2d 818). 

It is also well settled that, in seeking summary judgment dismissing a

complaint, “[a] moving party must affirmatively establish the merits

of [his or her] . . . defense and does not meet [his or her] burden by

noting gaps in [the] opponent’s proof” (Orcutt v American Linen Supply

Co., 212 AD2d 979, 980; see Frank v Price Chopper Operating Co., 275

AD2d 940). Although in his brief on appeal defendant relies on

evidence submitted by plaintiff in opposition to the motion, i.e.,

plaintiff’s deposition testimony, we do not consider that deposition

testimony in determining the merits of defendant’s motion inasmuch as

he failed to meet his initial burden of proof (see Larkin v Rochester

Hous. Auth., 81 AD3d 1354, 1355). Defendant’s failure to do so

requires denial of the motion, regardless of the sufficiency of the

opposing papers (see generally Alvarez v Prospect Hosp., 68 NY2d 320,

324).

Entered: June 10, 2011 Patricia L. Morgan

Clerk of the Court