Cadle Co. v. Gregory

Appellate Division of the Supreme Court of New York

Cadle Co. v. Gregory

293 A.D.2d 335, 739 N.Y.S.2d 825, 2002 N.Y. App. Div. LEXIS 3628

Appellate Division of the Supreme Court of the State of New York·Decided April 11, 2002·Published

Opinion

Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about June 22, 2001, which, in an action on a promissory note, insofar as appealed from, denied plaintiff’s predecessor’s motion for summary judgment, unanimously affirmed, without costs.

Plaintiff’s predecessor’s papers in support of the motion did not include evidentiary proof in admissible form sufficient to satisfy its initial burden of establishing the amount due, and thus the motion was properly denied regardless of the sufficiency of defendant’s opposing papers (see, Agway, Inc. v North Clymer Farm Serv., 291 AD2d 818, 820, citing, inter alia, Alvarez v Prospect Hosp., 68 NY2d 320, 324). Specifically, the affidavit of its successor’s, i.e., the current plaintiff’s, employee [336] that was submitted in support of the motion did not identify the nature of his position or how he was familiar with the facts and circumstances stated therein, and his assertions of a default and of certain amounts due for principal, interest and late fees were made without evidentiary support and were conclusory. Concur—Tom, J.P., Buckley, Sullivan, Ellerin and Wallach, JJ.

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Order, Supreme Court, New York County (Jane Solomon, J.), entered on or about June 22, 2001, which, in an action on a promissory note, insofar as appealed from, denied plaintiff’s predecessor’s motion for summary judgment, unanimously affirmed, without costs.

Plaintiff’s predecessor’s papers in support of the motion did not include evidentiary proof in admissible form sufficient to satisfy its initial burden of establishing the amount due, and thus the motion was properly denied regardless of the sufficiency of defendant’s opposing papers (see, Agway, Inc. v North Clymer Farm Serv., 291 AD2d 818, 820, citing, inter alia, Alvarez v Prospect Hosp., 68 NY2d 320, 324). Specifically, the affidavit of its successor’s, i.e., the current plaintiff’s, employee [336] that was submitted in support of the motion did not identify the nature of his position or how he was familiar with the facts and circumstances stated therein, and his assertions of a default and of certain amounts due for principal, interest and late fees were made without evidentiary support and were conclusory. Concur—Tom, J.P., Buckley, Sullivan, Ellerin and Wallach, JJ.

Cadle Co. v. Gregory, 293 A.D.2d 335, 739 N.Y.S.2d 825, 2002 N.Y. App. Div. LEXIS 3628 (N.Y. Ct. App. 2002).

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Opinion

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