Metropolitan Bank of Syracuse v. Hall

Appellate Division of the Supreme Court of New York

Metropolitan Bank of Syracuse v. Hall

52 A.D.2d 1084, 384 N.Y.S.2d 305, 1976 N.Y. App. Div. LEXIS 13017

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 28, 1976

StatusPublished

Cited by3 cases

This text of 52 A.D.2d 1084 (Metropolitan Bank of Syracuse v. Hall) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Metropolitan Bank of Syracuse v. Hall, 52 A.D.2d 1084, 384 N.Y.S.2d 305, 1976 N.Y. App. Div. LEXIS 13017 (N.Y. Ct. App. 1976).

Pincite

Opinion

Judgment unanimously affirmed, without costs. Memorandum: Special Term’s determination that no substantial issue of fact exists bearing upon defendants’ liability to plaintiff was in all respects proper, warranting the grant of summary judgment. As this court held in Koppers Co. v Empire Bituminous Prods. (35 AD2d 906, 907, affd 30 NY2d 609): "Although summary judgment may not be granted where the existence of a question of fact is in doubt or even arguable (Terranova v. Emil, 20 N Y 2d 493; Falk v. Goodman, 7 N Y 2d 87, 91), ' "A shadowy semblance of an issue is not enough to defeat the motion” ’ (De Groes v. De Groes, 17 A D 2d 930) and ' "Bald conclusionary assertions, even if believable, are not enough” ’ (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N Y 2d 255, 259). Absent claim that the facts are not within his control, a party cannot defeat a motion for summary judgment without laying bare his proof in evidentiary form (Di Sabato v. Soffes, 9 A D 2d 297, 301; Kramer v. Harris, 9 A D 2d 282).” Defendants’ pleadings, affidavits and exhibits here submitted in opposition are insufficient factually to defeat the award of summary judgment in this case. Notwithstanding defendants’ pleading deficiency in failing to allege affirmatively as required by CPLR 3018 (subd [b]), we have examined defendants’ contentions concerning section 253 of the General Business Law as well as subdivision 2 of section 3-101 of the General Obligations Law and find neither here applicable to accord any defense to plaintiff’s action. (Appeal from judgment of Onondaga Supreme Court—summary judgment.) Present—Moule, J. P., Mahoney, Dillon, Goldman and Witmer, JJ.

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Judgment unanimously affirmed, without costs. Memorandum: Special Term’s determination that no substantial issue of fact exists bearing upon defendants’ liability to plaintiff was in all respects proper, warranting the grant of summary judgment. As this court held in Koppers Co. v Empire Bituminous Prods. (35 AD2d 906, 907, affd 30 NY2d 609): "Although summary judgment may not be granted where the existence of a question of fact is in doubt or even arguable (Terranova v. Emil, 20 N Y 2d 493; Falk v. Goodman, 7 N Y 2d 87, 91), ' "A shadowy semblance of an issue is not enough to defeat the motion” ’ (De Groes v. De Groes, 17 A D 2d 930) and ' "Bald conclusionary assertions, even if believable, are not enough” ’ (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N Y 2d 255, 259). Absent claim that the facts are not within his control, a party cannot defeat a motion for summary judgment without laying bare his proof in evidentiary form (Di Sabato v. Soffes, 9 A D 2d 297, 301; Kramer v. Harris, 9 A D 2d 282).” Defendants’ pleadings, affidavits and exhibits here submitted in opposition are insufficient factually to defeat the award of summary judgment in this case. Notwithstanding defendants’ pleading deficiency in failing to allege affirmatively as required by CPLR 3018 (subd [b]), we have examined defendants’ contentions concerning section 253 of the General Business Law as well as subdivision 2 of section 3-101 of the General Obligations Law and find neither here applicable to accord any defense to plaintiff’s action. (Appeal from judgment of Onondaga Supreme Court—summary judgment.) Present—Moule, J. P., Mahoney, Dillon, Goldman and Witmer, JJ.

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Bluebook (online)

52 A.D.2d 1084, 384 N.Y.S.2d 305, 1976 N.Y. App. Div. LEXIS 13017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metropolitan-bank-of-syracuse-v-hall-nyappdiv-1976.

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