Mobil Oil Corp. v. Penna

139 A.D.2d 501, 526 N.Y.S.2d 849, 1988 N.Y. App. Div. LEXIS 3763

Opinion

— In an action to recover moneys due for goods sold and delivered, the defendant appeals from an order of the Supreme Court, Westchester County (Gurahian, J.), entered August 6, 1987, which denied his motion to dismiss the complaint and granted the plaintiff’s cross motion for summary judgment.

Ordered that the order is affirmed, with costs.

The plaintiff, a gasoline distributor, commenced this action against the defendant, a retailer, to recover payments allegedly due for gasoline delivered to the defendant pursuant to an agreement. The initial delivery involved in this action occurred on August 28, 1982. Despite the defendant’s contentions to the contrary, the four-year Statute of Limitations had not yet expired when the plaintiff served its summons and complaint on June 30, 1986 (CPLR 213, 203; UCC 2-725). Thus, the defendant’s motion to dismiss the complaint as being barred by the Statute of Limitations was properly denied.

Since the plaintiff made a prima facie showing of its entitlement to summary judgment, it was incumbent upon the defendant to come forth with evidentiary proof in admissible form sufficient to establish the existence of material and triable issues of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). This the defendant has failed to do. The affirmation of counsel, not based upon personal knowledge of the facts and without supporting documentation, is insufficient (see, Kartiganer Assocs. v Town of New Windsor, 132 AD2d 527, lv denied 70 NY2d 612). Bare conclusory assertions will not suffice to defeat a motion for summary judgment (see, Rotuba Extruders v Ceppos, 46 NY2d 223, 231).

Accordingly, there was no error in granting the plaintiffs cross motion for summary judgment. Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur.