Zawatski v. Cheektowaga-Maryvale Union Free School District

—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 NY2d 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 AD2d 44 , 53, lv denied 89 NY2d 809 ; see also, Matter of State Div. of Human Rights v St. Elizabeth’s Hosp., 66 NY2d 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 NY2d 557 , 562; cf., Connell v Brink [appeal No. 2], 199 AD2d 1032 ; see also, People v Uran Min. Corp., 13 AD2d 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. (Appeal from Order of Supreme Court, Erie County, Sconiers, J. — Summary Judgment.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Hurlbutt, JJ.