Favole v. Gallo

263 A.D. 729, 30 N.Y.S.2d 878, 1941 N.Y. App. Div. LEXIS 4739

Opinion

Action to recover damages for personal injuries. The defendants interposed a defense of release. The plaintiff, in his reply, demed the allegations of this defense. Defendants moved for summary judgment under rule 113 of the Rules of Civil Practice. Resettled order denying motion reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The documentary evidence supports the defense. No affidavits were interposed by the plaintiff from affiants having personal knowledge and avoiding in an evidentiary way the effect of the release. Therefore, no triable issue of fact appears on tMs record in respect of this defense. It affirmatively appears that several individuals, including the plaintiff, were in a position to make such affidavits if the true situation revealed any infirmity in the release. The affidavit of the attorney having no personal knowledge and reciting hearsay is of no effect. (City Savings Bank of Brooklyn v. Torro, 253 App. Div. 748.) Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.