Yardarm Beach Homeowners Ass'n, Inc, 134 AD2d 1 (2d Dept 1987); Frisch, supra ;
Blumberg v. Albicocco, 12 Misc 3d
1045 (NY Sup 2006).
On the issue of the quality of the work performed by the defendant, the defendant maintains
since the fire in 2003, that it has performed all of the necessary repairs to make the unit habitable.
The defendant has provided the affidavit of its agent, Toni d'Egidio, the affidavit of Amadeo
Mancusi, the president and owner of the contractor who performed the repair work on the unit, as
well as numerous color photographs of the unit itself. Plaintiff has failed to demonstrate a triable
issue of fact on this point. The only evidence that plaintiff has submitted on this record regarding
the present condition of the unit are her own affidavits, a memorandum from Mr. Edward
Olmsted, CIH, CSP, detailing the results of an indoor environmental survey, which is unsigned
and not sworn to, and correspondence between the parties, and plaintiff's insurance company
regarding a water leak and associated damage which occurred on or about May 28, 2008.
Plaintiff's affidavits are mostly conclusory on the issue of the present condition of the apartment.
The only items that have specifically been identified by plaintiff as requiring further remedy are
"windows" and "HVAC units" which plaintiff maintains are required to be replaced. Yet plaintiff
has failed to establish that the defendant has violated the bylaws by failing to replace such items,
or is otherwise required to perform such repairs.
As for Mr. Olmsted's memorandum, unsworn reports do not constitute evidentiary proof in
admissible form and may not be considered in opposition to a summary judgment motion. See
Bendik v. Dybowski, 227 AD2d 228 (1st Dept 1996). Therefore, Mr Olmstead's