Bourgeois v. Celentano

Appellate Division of the Supreme Court of New York

Bourgeois v. Celentano

10 A.D.2d 824, 199 N.Y.S.2d 87, 1960 N.Y. App. Div. LEXIS 10636

Appellate Division of the Supreme Court of the State of New York·Decided April 12, 1960·Published·Cited by 1 cases

Opinion

Order granting summary judgment to defendants and the judgment entered thereon, unanimously affirmed, with costs to respondents. In granting summary judgment, Special Term excluded from consideration the averments in the affidavits which, in the absence of a waiver, would have been inadmissible on a trial because of the provisions of section 347 of the Civil Practice Act. This court has, however, examined and weighed all of the affidavits including statements of facts and circumstances of transactions with the decedent, and from the entire record has concluded that there is no triable issue and the plaintiff’s claim lacks merit. This court’s view is that on a motion for summary jugment matter which might be excluded on a trial pursuant to section 347 of the Civil Practice Act may nevertheless be considered in determining whether a triable issue exists to defeat the motion (see, contra, Ditkoff v. Prudential Sav. Bank, 245 App. Div. 748 [2d Dept., 1935]). Concur — Breitel, J. P., Rabin, M. M. Frank, Valente and McNally, JJ.

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Order granting summary judgment to defendants and the judgment entered thereon, unanimously affirmed, with costs to respondents. In granting summary judgment, Special Term excluded from consideration the averments in the affidavits which, in the absence of a waiver, would have been inadmissible on a trial because of the provisions of section 347 of the Civil Practice Act. This court has, however, examined and weighed all of the affidavits including statements of facts and circumstances of transactions with the decedent, and from the entire record has concluded that there is no triable issue and the plaintiff’s claim lacks merit. This court’s view is that on a motion for summary jugment matter which might be excluded on a trial pursuant to section 347 of the Civil Practice Act may nevertheless be considered in determining whether a triable issue exists to defeat the motion (see, contra, Ditkoff v. Prudential Sav. Bank, 245 App. Div. 748 [2d Dept., 1935]). Concur — Breitel, J. P., Rabin, M. M. Frank, Valente and McNally, JJ.

Bourgeois v. Celentano, 10 A.D.2d 824, 199 N.Y.S.2d 87, 1960 N.Y. App. Div. LEXIS 10636 (N.Y. Ct. App. 1960).

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