Gjertsen v. Stracke

26 Misc. 2d 824, 213 N.Y.S.2d 925, 1960 N.Y. Misc. LEXIS 1945

Opinion

Mabio Pittohi, J.

Defendant Stracke’s motion for summary judgment dismissing the complaint is denied.

The only supporting affidavit is by the defendant’s attorney. Subdivision 2 of rule 113 of the Buies of Civil Practice requires the affidavit to be ‘1 by a person having knowledge of the facts; it must recite all the material facts; and it must show * * * that the action * * * has no merit ’ ’. This affidavit has failed in all three of these respects, especially in its failure to be by a person with knowledge, not hearsay. An affidavit by an attorney without personal knowledge is hearsay and is not sufficient (Favole v. Gallo, 263 App. Div. 729 [2d Dept], affd. 289 N. Y. 696; see Di Sabato v. Soffes, 9 A D 2d 297, 300, 301 [1st Dept.]).

Be that as it may, there is an issue of fact as to whether the Stracke car stopped short, thus contributing to the accident.