General
Joseph E. G., Jr., et al., Appellants, v. East Irondequoit Central School District et al., Respondents
273 A.D.2d 835708 N.Y.S.2d 537·New York Supreme Court, Appellate Division·2000·NY
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Opinion
Joseph E. G., Jr., et al., Appellants, v East Irondequoit Central School District et al., Respondents.
[708 NYS2d 537]
[MAJORITY]
Amended order unanimously reversed on the law without costs, motions and cross motion denied and complaint reinstated. Memorandum: Supreme Court erred in granting defendants’ motions and cross motion for summary judgment dismissing the complaint. The infant plaintiff, a member of the East Ridge High School wrestling team, developed herpes simplex I after participating in a wrestling meet at Victor High School involving teams from defendant school districts. Defendants Fairport Central School District and East Irond-
[MAJORITY]
equoit Central School District failed to submit evidence in admissible form establishing their entitlement to judgment as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557, 562). The affidavits of their counsel, who have no personal knowledge of the facts, lack evidentiary value (see, Wright v Rite-Aid of NY, 249 AD2d 931; McGowan v Villa Maria Coll., 185 AD2d 674; see also, Buffalo Retired Teachers 91-94 Alliance v Buffalo Teachers Fedn., 251 AD2d 968), and uncertified, unsworn medical records are not in admissible form (see, Butera v Woodhouse, 267 AD2d 1039; Briggs v Consolidated Rail Corp., 190 AD2d 1047, 1048-1049). Although the motion of defendant Victor Central School District was supported by evidence in admissible form, i.e., the affidavit of its wrestling coach, that affidavit does not address the allegation that defendant Victor Central School District was negligent in failing to clean the mats properly after a wrestler sustained a bloody nose. Thus, that defendant also failed to meet its initial burden of establishing its entitlement to judgment as a matter of law, and the “[flailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). (Appeal from Amended Order of Supreme Court,. Monroe County, Siracuse, J. — Summary Judgment.) Present — Pine, J. P., Wisner, Hurlbutt and Scudder, JJ.