Opinion
May 18, 1967
Order granting respondent's motion for summary judgment, unanimously reversed, on the law, and the judgment entered thereon vacated, with $50 costs and disbursements to appellant. The record discloses issues of fact which preclude summary judgment. These issues include, amongst others, (1) whether respondent so mishandled or misrepresented the accounts receivable as to destroy appellant's rights of subrogation and discharge him from liability under the agreement of May 18, 1962, and (2) whether respondent had knowledge of the April 29, 1964 Federal tax lien at the time of the settlement reached in September of 1965, and withheld such knowledge from the appellant. The information bearing upon these issues of fact was peculiarly within the knowledge of respondent. Summary judgment should have been denied in the absence of any opportunity having been afforded appellant to secure disclosure bearing upon these crucial issues raised in the affidavits submitted by appellant in opposition to respondent's motion. (CPLR 3212, subd. [f]; Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404; Piedmont Hotel Co. v. Nettleton Co., 263 N.Y. 25, 30.)
Concur — Stevens, J.P., Eager, Capozzoli, McNally and McGivern, JJ.