JOHANNSEN v. RUDOLPH

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

Thea JOHANNSEN, Plaintiff-Respondent, v. Bestany RUDOLPH, et al., Defendants-Appellants.

Decided: November 21, 2006

ANDRIAS, J.P., NARDELLI, GONZALEZ, SWEENY, CATTERSON, JJ. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Gregory A. Cascino of counsel), for appellants. The Kohn Law Firm, P.C., Bronx (Lydia S. Antoncic of counsel), for respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, J.), entered February 3, 2006, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed.   The Clerk is directed to enter judgment accordingly.

Plaintiff contends that she tripped on a plastic packaging hoop while walking on the sidewalk near defendants' alleyway dumpsters and that refuse had been present on the subject sidewalk area on many occasions.   It is undisputed that at the time of the accident, defendants were under no statutory duty to maintain the sidewalk.   Plaintiff claims that defendants created the dangerous condition because no other store on the subject street, but for defendants' store, disposed of plastic packaging hoops similar to the one that allegedly caused plaintiff to trip and fall.   This averment was contained in an attorney's affirmation submitted in opposition to defendants' motion for summary judgment.   It was not made on the basis of personal knowledge of the facts or supported by evidence in admissible form and, therefore, was insufficient to defeat the motion for summary judgment (La-Tonia Diaz v. New York City Tr. Auth., 12 A.D.3d 316, 784 N.Y.S.2d 868 [2004];  Ramos v. New York City Hous. Auth., 264 A.D.2d 568, 694 N.Y.S.2d 384 [1999] ).