Franklyn Folding Box Co. v. Grinnell Manufacturing, Inc.

234 A.D.2d 505, 651 N.Y.S.2d 914, 1996 N.Y. App. Div. LEXIS 13270

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 23, 1996
• Status: Published

Opinion

—In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Queens County (O’Donoghue, J.), dated March 22, 1996, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion is granted.

This action arises from an order for certain packaging materials placed by the defendant, a manufacturer of costume jewelry, with the plaintiff, a manufacturer of packaging material. In support of its motion for summary judgment, the defendant submitted a written "acknowledgment of order” form which expressed the terms of the parties’ agreement, and an affidavit by its president demonstrating that the defendant fully complied with the terms of the agreement. In response, the plaintiff submitted a hearsay attorney’s affirmation claiming that the agreement consisted of different terms than those set forth in the defendant’s moving papers and that a breach occurred.

It is well settled that a party opposing summary judgment must produce evidence in admissible form creating an issue of fact, and that an affirmation of counsel, without personal knowledge of the facts, is insufficient (see, Zuckerman v City of New York, 49 NY2d 557). Since the defendant met its initial burden of establishing its defense, and the plaintiff failed to come forward with admissible evidence to create an issue of fact, the defendant should have been granted summary judgment. Bracken, J. P., Copertino, Joy, Florio and McGinity, JJ., concur.