Opinion
July 2, 1992
Appeal from the Supreme Court, New York County (Carol Arber, J.).
The affidavit of defendant's officer submitted in support of the motion was not based on personal knowledge concerning the installation of the carpet, and the claim therein that the carpet was properly installed is necessarily conclusory. As such, the motion was properly denied even though plaintiff's opposition consisted only of an attorney's affirmation which itself was without evidentiary value. "The burden is upon [the moving party] to produce evidence whereby it clearly appears that no material and triable issue of fact is presented, even where the opposing papers may be insufficient to defeat the motion [citation omitted]." (Matter of Redemption Church of Christ v. Williams, 84 A.D.2d 648, 649.) Moreover, assuming that defendant was never given notice of the defective condition of the carpet, such fact would not entitle it to summary judgment, since notice is not required when it is the defendant who allegedly created the dangerous condition (Saia v. Misrahi, 129 A.D.2d 621).
Concur — Rosenberger, J.P., Ellerin, Kupferman, Ross and Asch, JJ.