Long Island Business Exchange, Inc. v. De Luca

65 A.D.2d 783, 410 N.Y.S.2d 327, 1978 N.Y. App. Div. LEXIS 13641

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 1978
• Status: Published

Opinion

In an action, inter alia, to recover damages resulting from defendants’ failure to carry out the purchase of a business, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered December 6, 1977, which, upon the granting of defendants’ motion for summary judgment, inter alia, dismissed the complaint. Judgment affirmed, with $50 costs and disbursements. The thrust of plaintiff’s claim is that it was deprived of its commission by defendants’ wrongful failure to apply for a beer license in a timely fashion. On a previous appeal in this action (Long Is. Business Exch. v De Luca, 58 AD2d 594), we held that Special Term had properly denied defendants’ motion to dismiss the complaint. Thereafter, defendants moved for summary judgment. Their motion papers included affidavits of the individual defendants setting forth an apparently valid excuse for their delay in submitting the necessary application to the State Liquor Authority. Plaintiff, in opposition to the motion, submitted an affirmation by its attorney, which was not based upon his personal knowledge and did not address the factual issue raised by defendants. Nor did the affirmation allege that facts necessary to defeat the motion were solely within defendants’ knowledge. In these circumstances, there was no triable issue of fact and Special Term correctly granted defendants’ motion for summary judgment. Mollen, P. J., Martuscello, Rabin and Gulptta, JJ., concur.