Opinion
May 7, 1999
Appeal from Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.
Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Hurlbutt, JJ.
Order unanimously reversed on the law without costs, motion granted and complaint dismissed. Memorandum: Supreme Court should have granted defendant's motion for summary judgment dismissing the complaint. Defendant met its initial burden of establishing entitlement to judgment as a matter of law ( see, Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065), and plaintiff failed to raise an issue of fact whether defendant's response to plaintiff's allegations of sexual harassment by a co-worker constituted condonation ( see, Matter of Father Belle Community Ctr. v. New York State Div. of Human Rights, 221 A.D.2d 44, 53, lv denied 89 N.Y.2d 809; see also, Matter of State Div. of Human Rights v. St. Elizabeth's Hosp., 66 N.Y.2d 684, 687). In view of our determination, we do not reach the issue concerning amending the answer.
Finally, the court properly settled the record to exclude plaintiff's memorandum of law ( see, CPLR 2219 [a]; 5526; Zuckerman v. City of New York, 49 N.Y.2d 557, 562; cf., Connell v. Brink [appeal No. 2], 199 A.D.2d 1032; see also, People v. Uran Min. Corp., 13 A.D.2d 612). Unsworn allegations of fact in the memorandum of law are without probative value and no issue of preservation of a legal issue is presented.