Milonas, J. (dissenting). In my opinion, the order being appealed should be reversed and summary judgment granted to plaintiff.
The law is established that an affirmation by counsel unaccompanied by evidentiary support is insufficient to defeat a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557). The cases cited by the majority, Olan v Farrell Lines (64 NY2d 1092) and Tibak v City of New York, (154 AD2d 313, lv denied 75 NY2d 705), do not hold to the contrary since in both of those matters the attorney’s affidavit or affirmation had attached to it proof of the position being urged therein.
In the present situation, however, the verified answer and demand submitted by defendant’s lawyer is entirely unsupple*638mented by any evidentiary matter corroborating counsel’s speculation that it should be assumed that plaintiff could have seen the car coming and that she should have taken some action to avoid being hit, this for no other reason than because she was in the crosswalk notwithstanding that she might have had the right of way. The accident report, which states that the driver claimed that he struck the pedestrian while making a left turn and didn’t see her, tends to confirm plaintiff’s account. Defendant, in his deposition, also does not in any way contradict plaintiff’s assertion that she was lawfully crossing the street at a normal pace in accordance with the traffic signal when she was struck by a 1987 Chevrolet van, owned and operated by defendant, as it was making a left hand turn. Indeed, considering that defendant admitted to police that he failed to notice the pedestrian, any statement in his deposition that might serve to undermine plaintiff’s description of the direction in which she was walking prior to being hit could of necessity amount to no more than a subsequent self-serving fabrication. Except for the unsubstantiated conjecture by defendant’s attorney that plaintiff somehow was, or could have been, negligent or careless, yet without specifying precisely what it was that she might have done wrong, the record is devoid of any evidence that creates even a semblance of an unresolved question of fact warranting a trial.
It should, moreover, be noted that the answer filed by defendant’s counsel is no more than a form document that contains such a ludicrous first affirmative defense as the following: "If plaintiffs) is operator or passenger in a motor vehicle, and if it be determined that plaintiffs) failed to use available seat belts, defendant(s) pleads said fact in mitigation of damages”, yet, it is undisputed that plaintiff was a pedestrian. The majority herein, based simply on the theorizing by defendant’s lawyer that plaintiff might have been able to escape being hit by defendant’s vehicle, have concluded that summary judgment was properly denied "since a failure to yield the right of way does not ipso facto settle the question of whether the other party was herself guilty of negligence”. The effect of this approach is to treat unsupported speculation indistinguishably from real evidence even where, as herein, there is absolutely no mention of what plaintiff actually did or might have done to avoid the accident. Consequently, whenever a pedestrian is struck by a vehicle in a crosswalk, the majority, in effect, holds that summary judgment should as a matter of course be unavailable despite the lack of any proof whatsoever that the pedestrian contributed in any way to the *639accident. A requirement has now been imposed that a pedestrian has an affirmative duty to look in every direction all at once and then allege compliance with that mandate since, by neglecting to "use her eyes” as specified by the majority, a pedestrian may be deemed responsible for contributing to the accident notwithstanding the actual circumstances surrounding the incident.