MTB Computer Corp. v. Chase Manhattan Bank, N. A.

135 A.D.2d 616, 522 N.Y.S.2d 194, 1987 N.Y. App. Div. LEXIS 52552

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 14, 1987
• Status: Published

Opinion

— In an action to recover damages for breach of contract, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated April 17, 1986, which reversed an order of the Civil Court of the City of New York, Kings County (Phillips, J.), dated June 25, 1985, denying the plaintiff’s cross motion for summary judgment and granting the defendant’s motion to compel discovery, and granted the plaintiff’s motion for summary judgment. On May 27, 1986, pursuant to the order of the Appellate Term, judgment was entered against the defendant in the amount of $29,687.50.

Ordered that the order of the Appellate Term is reversed, with costs, the judgment is vacated, and the order dated June 25,1985 is affirmed; and it is further,

Ordered that the plaintiff’s time to comply with the discovery demands at issue is extended until 30 days after service upon it of a copy of this decision and order, with notice of entry.

We find that the affidavit of the defendant’s attorney which served as a vehicle for the submission of documentary attachments, provided sufficient evidentiary proof in admissible form to raise triable issues of fact warranting the denial of summary judgment (see, Zuckerman v City of New York, 49 NY2d 557, 562; Spearmon v Times Sq. Stores Corp., 96 AD2d 552). Thompson, J. P., Lawrence, Rubin and Spatt, JJ., concur.