Dinzler v. Lombardo

Appellate Division of the Supreme Court of New York

Dinzler v. Lombardo

25 A.D.2d 467, 266 N.Y.S.2d 50, 1966 N.Y. App. Div. LEXIS 5187

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 13, 1966

StatusPublished

This text of 25 A.D.2d 467 (Dinzler v. Lombardo) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dinzler v. Lombardo, 25 A.D.2d 467, 266 N.Y.S.2d 50, 1966 N.Y. App. Div. LEXIS 5187 (N.Y. Ct. App. 1966).

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Opinion

Per Curiam.

Appeal (1) from an order of the Supreme Court which granted partial summary judgment upon certain promissory notes and (2) from the judgment entered thereon. The notes are complete and regular upon their face. Appellant concedes that he signed the notes, but'his answer pleads that they were given without consideration and upon false representations. His affidavits in opposition to the motion for summary judgment allege, rather vaguely and with some inconsistencies and seeming contradictions, business transactions between the parties and assert that appellant signed the notes, in blank, without consideration, and solely to enable plaintiff Herbert Dinzler to exhibit them as evidence that he was possessed of assets. Special Term found “ a complete lack of evidentiary matter explaining or detailing the circumstances of these transactions ” and the averments of the affidavits are indeed largely conelusory and, therefore, without probative force; but after outlining the conversations and agreements, albeit in conelusory terms, one of the affidavits states that the notes “ were signed solely to help Mr. Dinzler; that no part of the $12,000.00 except $5,100.00 was ever received by your deponent and refunded in part to Mr. Dinzler even though the funds were given by Mr. Dinzler on his oral agreement ” and that “ deponent never received any funds from Mr. Dinzler except the funds set forth in the cheeks annexed to plaintiff’s petition and as to those they were given pursuant to defendant’s and plaintiff’s agreement.” These denials of the receipt of any consideration are minimally sufficient and raise a factual controversy sufficient to defeat plaintiffs’ motion. Judgment and order reversed, on the law and the facts, and motion denied, with $20 costs.

Gibson, P. J., Ilerlihy, Taylor, Aulisi and Hamm, JJ., concur.

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Per Curiam.

Appeal (1) from an order of the Supreme Court which granted partial summary judgment upon certain promissory notes and (2) from the judgment entered thereon. The notes are complete and regular upon their face. Appellant concedes that he signed the notes, but'his answer pleads that they were given without consideration and upon false representations. His affidavits in opposition to the motion for summary judgment allege, rather vaguely and with some inconsistencies and seeming contradictions, business transactions between the parties and assert that appellant signed the notes, in blank, without consideration, and solely to enable plaintiff Herbert Dinzler to exhibit them as evidence that he was possessed of assets. Special Term found “ a complete lack of evidentiary matter explaining or detailing the circumstances of these transactions ” and the averments of the affidavits are indeed largely conelusory and, therefore, without probative force; but after outlining the conversations and agreements, albeit in conelusory terms, one of the affidavits states that the notes “ were signed solely to help Mr. Dinzler; that no part of the $12,000.00 except $5,100.00 was ever received by your deponent and refunded in part to Mr. Dinzler even though the funds were given by Mr. Dinzler on his oral agreement ” and that “ deponent never received any funds from Mr. Dinzler except the funds set forth in the cheeks annexed to plaintiff’s petition and as to those they were given pursuant to defendant’s and plaintiff’s agreement.” These denials of the receipt of any consideration are minimally sufficient and raise a factual controversy sufficient to defeat plaintiffs’ motion. Judgment and order reversed, on the law and the facts, and motion denied, with $20 costs.

Gibson, P. J., Ilerlihy, Taylor, Aulisi and Hamm, JJ., concur.

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Bluebook (online)

25 A.D.2d 467, 266 N.Y.S.2d 50, 1966 N.Y. App. Div. LEXIS 5187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dinzler-v-lombardo-nyappdiv-1966.