Opinion
July 14, 1992
Appeal from the Supreme Court, Erie County, Fallon, J.
Present — Denman, P.J., Pine, Balio, Lawton and Doerr, JJ.
Order unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: Plaintiff sustained injuries when she fell on a marble wheelchair ramp leading to the cafeteria at defendant college. She alleged two theories of liability: that defendant allowed various substances to accumulate on the ramp and that the ramp was defectively designed.
Defendant moved for summary judgment on the grounds that defendant had no notice of a dangerous condition and that the ramp was not defectively designed. In support of its motion for summary judgment, defendant submitted only an attorney's affidavit which made reference to portions of plaintiff's EBT testimony. The court erred in granting the motion. "A defendant moving for summary judgment has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts * * * and showing that the cause of action has no merit" (GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 967; see also, Iselin Co. v. Mann Judd Landau, 71 N.Y.2d 420; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Lindsay v. Potter, 163 A.D.2d 870). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v. New York Univ. Med. Ctr., supra, at 853). An affidavit or affirmation of counsel without personal knowledge of the facts is an insufficient evidentiary showing and cannot form the basis for a grant of summary judgment (see, GTF Mktg. v. Colonial Aluminum Sales, supra; Zuckerman v. City of New York, 49 N.Y.2d 557, 563).
Defendant failed to submit proof in admissible form to demonstrate that it had no notice of a defective condition. Moreover, on its motion for summary judgment, it was defendant's burden to prove that, as a matter of law, the ramp was not defectively designed (see, Eisenhart v. The Marketplace, 176 A.D.2d 1220). Defendant's submissions were inadequate to entitle it to summary judgment.