Fishman v. Nassau County
| Decision Date | 23 November 1981 |
| Citation | 84 A.D.2d 806,444 N.Y.S.2d 146 |
| Parties | Anita FISHMAN, Respondent, v. The COUNTY OF NASSAU, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Edward G. McCabe, County Atty., Mineola (Joshua A. Elkin, Deputy County Atty., Mineola, of counsel), for appellant.
Cline, Hallissey & Hausman, New York City (Reva Hausman, New York City, of counsel), for respondent.
Before MANGANO, J. P., and O'CONNOR, WEINSTEIN and BRACKEN, JJ.
MEMORANDUM BY THE COURT.
In a personal injury action, defendant County of Nassau appeals from two orders of the Supreme Court, Nassau County, the first, dated May 19, 1980, which denied its motion for summary judgment dismissing the complaint and the second, dated June 16, 1980, which denied it leave to reargue the prior motion.
Appeal from the order dated June 16, 1980, dismissed, without costs or disbursements. No appeal lies from an order denying a motion for reargument. (See Morris v. Morris, 33 A.D.2d 786, 307 N.Y.S.2d 127.)
Order dated May 19, 1980, reversed, on the law, without costs or disbursements, motion for summary judgment granted, and the complaint is dismissed on the merits.
Plaintiff's affidavit in opposition to the county's motion for summary judgment failed to do more than repeat or incorporate by reference the allegations contained in the pleadings. Those allegations merely constituted conclusory assertions. Consequently, plaintiff did not sustain her burden of demonstrating, by means of evidentiary facts, that a trial was required with respect to the allegations in the complaint. (See Barr v. County of Albany, 50 N.Y.2d 247, 257, 427 N.Y.S.2d 665, 406 N.E.2d 665; see also, Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776; Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 309 N.Y.S.2d 341, 257 N.E.2d 890; Indig v. Finkelstein, 23 N.Y.2d 728, 296 N.Y.S.2d 370, 244 N.E.2d 61.) Accordingly, the complaint must be dismissed on the merits pursuant to CPLR 3212 (subd. [b]).
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