GTE Sylvania Inc. v. Jupiter Supply Co.

51 A.D.2d 993, 380 N.Y.S.2d 742, 1976 N.Y. App. Div. LEXIS 11746

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 8, 1976
• Status: Published

Opinion

In an action (1) against Jupiter Supply Co., Inc., to recover for goods sold and delivered and (2) against Luna Industries, Inc., on its guarantee of payment for such goods, Luna Industries, Inc., appeals from a judgment of the Supreme Court, Westchester County, dated May 5, 1975, which, inter alia, granted the plaintiff’s motion for summary judgment as against it. Judgment affirmed, without costs or disbursements. A motion for summary judgment cannot be defeated by conclusory statements devoid of evidentiary facts showing a bona fide issue requiring a trial. While appellant asserts the existence of a valid affirmative defense, it has not alleged evidentiary facts showing that any of the materials delivered by plaintiff were delivered late or improperly, or that it was overcharged, or that plaintiff delivered improper or defective merchandise, or that materials delivered were returned (see General Bldg. Supply Corp. v Shapn, Inc., 35 AD2d 550). Furthermore, the affidavit of appellant’s attorney must be disregarded because of his failure to profess personal knowledge of the underlying facts (see V.A.W. of Amer. v General Elec. Co., 38 AD2d 989, 990; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.05); objection to this affidavit was made by plaintiff at Special Term (see Mackenzie v Rothschild, 267 App Div 989, mod 294 NY 800; Universal C.I.T. Credit Corp. v Murphy, 33 Misc 2d 74). Martuscello, Acting P. J., Latham, Rabin and Titone, JJ., concur.