Deronde Products, Inc. v. Steve General Contractor, Inc.

302 A.D.2d 989, 755 N.Y.S.2d 152, 2003 N.Y. App. Div. LEXIS 1088

Opinion

Appeal from an order of Supreme Court, Livingston County (Alonzo, J.), entered July 9, 2001, which granted third-party plaintiffs motion for partial summary judgment and awarded plaintiff $26,200 with interest thereon and costs.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the award of two back charges in the amounts of $3,120 and $3,862 and the interest thereon and as modified the order is affirmed without costs.

Memorandum: Third-party defendant appeals from an order granting third-party plaintiffs motion for partial summary judgment. In seeking partial summary judgment, third-party plaintiff contended that third-party defendant disputed only that it owes $13,582 of a total of $32,800 sought and thereby admitted that it owes the amount of $19,218. We agree, and thus we conclude that Supreme Court properly granted partial summary judgment with respect to the amount of $19,218. We further conclude, however, that the court erred in also awarding third-party plaintiff two back charges in the amounts of $3,120 and $3,862, respectively. In support of its contention that it is entitled to those back charges, third-party plaintiff submitted only the affirmation of its attorney, who has no personal knowledge of the facts. The attorney’s affirmation therefore is without evidentiary value (see Wright v Rite-Aid of N.Y., 249 AD2d 931), and third-party plaintiff failed to meet its initial burden with respect to those back charges. Consequently, we modify the order by vacating the award of those two back charges and the interest thereon. Present — Wisner, J.P., Scudder, Burns and Hayes, JJ.