Shepard Oil Co. v. Ryan

62 A.D.2d 1074, 403 N.Y.S.2d 589, 1978 N.Y. App. Div. LEXIS 11170

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1978
• Status: Published

Opinion

Appeal from an order of the Fulton County Court, entered April 28, 1977, which denied plaintiffs motion for summary judgment. After issue was joined and a bill of particulars served in an action for goods sold and delivered, plaintiff moved for summary judgment in the sum of $220.44. Defendant did not submit any papers in opposition. The motion was denied. Plaintiff contends that mere oral argument of counsel, unsupported by affidavits or other evidence, cannot defeat a motion for summary judgment where the supporting papers show a prima facie entitlement to such relief. We agree. In Holdridge v Town of Burlington (32 AD2d 581), we held that once a prima facie showing had been made by movant, it is incumbent upon a defendant to come forward with matters of an evidentiary nature to demonstrate the presence of triable issues. In Holdridge, as here, the defendant submitted no affidavit or other supporting paper in opposition, nor was even a perfunctory showing made of any evidentiary facts underlying the contentions orally made to the trial court and here. Review of plaintiffs motion papers readily indicates a viable cause of action for goods sold and delivered. Defendant’s affirmative defense that she advised plaintiff on March 13, 1974 that its services and materials were no longer desired, raises no issue of fact. The record clearly shows that plaintiff delivered kerosene to defendant in April and November of 1974, and that defendant made a partial payment on November 26, 1974. Order reversed, on the law, with costs, and plaintiffs motion for summary judgment granted. Mahoney, P. J., Greenblott, Staley, Jr., Mikoll and Herlihy, JJ., concur.