Gentile v. 2400 Johnson Ave. Owner, Inc., 2024 NY Slip Op 00863 (2024)

In support of their summary judgment motion seeking dismissal as against the board defendants of plaintiffs' fourth cause of action for retaliation and fifth cause of action for breach of fiduciary duty, the board defendants argued that they sent the notice of default for reasons related to a refinancing and also sent the notice to a shareholder-tenant other than plaintiffs. They further claimed that they had taken steps to address plaintiffs' concerns about water quality in residents' apartments. However, their cross-motion was supported only by their attorney's affirmation and did not include an affidavit by a person with personal knowledge (CPLR 3212[b]). Furthermore, defendants failed to submit any evidence in admissible form in support of their cross-motion. The copy of a drinking water test report attached to counsel's affirmation was not qualified as a business record or otherwise in admissible form and was thus hearsay. Defendants did [*2]not attach any documentation at all regarding the notices of default allegedly sent. Accordingly, defendants failed to make a prima facie showing of entitlement to summary judgment dismissing plaintiffs' fourth and fifth causes of action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) .