Israelson v. Rubin

20 A.D.2d 668, 247 N.Y.S.2d 85, 1964 N.Y. App. Div. LEXIS 4506

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 27, 1964
• Status: Published

Opinion

In. an action to recover eobrokerage commissions (first and second causes of action) and compensation allegedly due under a contract of employment (third and fourth causes of action), plaintiff appeals from an order of the Supreme Court, Rockland County, dated May 28, 1963, which denied his motion for partial summary judgment for the relief demanded in the third and fourth causes of action. Order reversed, without costs; action severed as to the first and second causes of action; plaintiff’s motion for partial summary judgment granted; and judgment directed to be entered in favor of plaintiff upon the third and fourth causes of action alleged in the complaint. The third and fourth causes of action, whereby plaintiff seeks to recover the sums of $3,363.65 and $4,175,. respectively, are based upon agreements which are substantiated by plaintiff’s affidavit and, in part, by the defendant’s admissions. Plaintiff deposes that he fully executed his part of the agreements and that defendant made partial payments on account thereof, with respect to which documentary proof is offered. The affidavit of defendant’s attorney, the only paper submitted in opposition to the motion, contains bald conclusions without any evidentiary facts to substantiate a defense or to refute plaintiff’s claims. Since it does not appear that defendant’s attorney has any personal knowledge of the facts, his affidavit has no probative value and should be disregarded (Cohen v. Pannia, 7 A D 2d 886; Barnet v. Horwitz, 278 App. Div. 700). Defendant having failed to show either by his own affidavit or by the affidavit of a person with knowledge that he (the defendant) has a bona fide defense to the third and fourth causes of action, summary judgment should be granted to plaintiff thereon (CPLR 3212; Schillinger v. North Hills Realty Corp., 15 A D 2d 539, affd. 11 N Y 2d 1044; Kramer v. Harris, 9 A D 2d 282; Dwan v. Massarene, 199 App. Div. 872). Beldock, P. J., Kleinfeld, Christ, Hill and Hopkins, JJ., concur.