        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
