Geraci v. Fabbozi

161 Misc. 450, 291 N.Y.S. 86, 1936 N.Y. Misc. LEXIS 1469

• Court: New York Supreme Court
• Decided: October 20, 1936
• Status: Published

Opinion

MacGregor, J.

This is an appeal from an order of the City Court of Buffalo denying a motion made, by the plaintiff for summary judgment. The action is brought by a physician to recover for medical services rendered at the request of the defendant to his mother. The motion was denied upon the ground that the proofs made by affidavits did not conform to the claim made in the complaint and also that the denials in the answer raised a question of fact. The claim made in the complaint is “ that the plaintiff performed certain professional medical and surgical services for and incidentally furnished medicines for the defendant.” The allegations of the complaint are sufficiently broad to cover services rendered to the mother upon the credit of the defendant.

No affidavits were submitted upon the motion by the defendant. The affidavits submitted by the plaintiff must be accepted as a statement of the facts. The allegations of the answer do not aid the defendant. (Mosca v. Parker-Aeolus, Inc., 130 Misc. 186; Saunders v. Delario, 135 id. 455; Hoof v. Hunter Corporation, 193 N. Y. Supp. 91; Dwan v. Massarene, 199 App. Div. 872; Lee v. Graubard, 205 id. 344.)

Order reversed; answer stricken out; summary judgment granted, with costs.