V. Saving Oil & Heating Co. v. Rana Management Corp.

161 A.D.2d 635, 555 N.Y.S.2d 413, 1990 N.Y. App. Div. LEXIS 6019

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 14, 1990
• Status: Published

Opinion

In an action to recover damages for breach of contract, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Brucia, J.), dated March 7, 1989, as denied its cross motion for summary judgment.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate judgment in accordance herewith.

The defendant contends that on the basis of copies of six notes, the canceled checks payable to the plaintiffs order and the plaintiffs controller’s affidavit in support of the plaintiffs motion for summary judgment wherein he admitted that the notes represented the full amount of the defendant’s outstanding debt, it established its defense to the nonpayment of the debt as a matter of law. In response, the plaintiff relies solely on an affidavit of the same controller which contains conclusory and unsupported allegations to the contrary.

We conclude that the court erred in denying the defendant’s cross motion for summary judgment, as a motion for summary judgment may not be defeated by the assertion of mere conclusory allegations, expressions of hope or unsubstantiated assertions (see, Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967; Shapiro v Shorenstein, 157 AD2d 832; Albert v Glick Developers, 155 AD2d 569). Kunzeman, J. P., Eiber, Sullivan and Balletta, JJ., concur.