Opinion
October 26, 1971
Order, Supreme Court, Bronx County, entered on April 6, 1971, insofar as appealed from, unanimously modified, on the law, so as to deny summary judgment on the third and fifth causes of action, and otherwise affirmed. Defendant-appellant-respondent shall recover of plaintiffs-respondents-appellants $50 costs and disbursements of this appeal. There are too many cross currents and inherent difficulties of proof to warrant any summary treatment of this litigation. All the principals being dead, a trial will be difficult enough. A disposition based on papers, none of them authored by a party, and involving so many issues of credibility, is unacceptable. The rule is clear that a court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine but feigned. ( Curry v. MacKensie, 239 N.Y. 267, 269-270.)
Concur — McGivern, J.P., Nunez, Kupferman, Tilzer and Eager, JJ.