Walski v. Forma

54 A.D.2d 776, 387 N.Y.S.2d 538, 1976 N.Y. App. Div. LEXIS 14456

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 1976
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered January 22, 1976 in Greene County, which denied plaintiffs’ motion for summary judgment. We agree with the conclusion arrived at by Special Term that a factual issue is presented as to whether or not the cause of action is barred by the Statute of Limitations. While, as plaintiffs contend, defendant’s affidavit in opposition to the motion does not set forth any facts or evidentiary material, and is conclusory in nature, nevertheless, the moving affidavits and proof submitted by plaintiffs do not establish their right to recovery in the action, as a matter of law. Rather, the record discloses that it is at least debatable whether the action was timely commenced. The burden is upon the movant to produce evidence whereby it must clearly appear that no material and triable issue of fact is presented by the pleadings, even where the opposing papers may be insufficient to defeat the motion (Stelick v Gangl, 47 AD2d 789; Greenberg v Manlon Realty, 43 AD2d 968). Furthermore, summary judgment should be denied where, as here, there is any doubt whether there is a material triable issue of fact (Phillips v Kantor & Co., 31 NY2d 307, 311; 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.05c). Order affirmed, without costs. Koreman, P. J., Greenblott, Kane, Mahoney and Main, JJ., concur.