Brown v. Smith

• Decision Date: 10 June 2011
• Parties: Shenice BROWN, Infant, by the Parent and Natural Guardian, Frances Brown, Plaintiff–Respondent,v.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.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1648
924 N.Y.S.2d 867
2011 N.Y. Slip Op. 04959

Shenice BROWN, Infant, by the Parent and Natural Guardian, Frances Brown, Plaintiff–Respondent,
v.
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.

Supreme Court, Appellate Division, Fourth Department, New York.

June 10, 2011.

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.Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan of Counsel), for defendant–appellant.Thornton & Naumes, LLP, Rochester (David J. Mcmorris of Counsel), for plaintiff–respondent.MEMORANDUM:

[85 A.D.3d 1648] 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 A.D.3d 604, 605, 856 N.Y.S.2d 134; Vidal v. Rodriquez, 301 A.D.2d 517, 518, 753 N.Y.S.2d 118; [85 A.D.3d 1649] Alexander v Westminster Presbyt. Church, 291 A.D.2d 813, 813–814, 737 N.Y.S.2d 572; see generally Chapman v. Silber, 97 N.Y.2d 9, 15, 734 N.Y.S.2d 541, 760 N.E.2d 329). 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 Niagara Falls Water Bd., 82 A.D.3d 1633, 1634, 919 N.Y.S.2d 639), 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...