Opinion
February 20, 1962
Plaintiff appeals from an order and judgment of the Supreme Court at Special Term, Albany County, granting defendant's motion pursuant to rule 113 of the Rules of Civil Practice. The action sounds in contract for breach of warranty. The complaint alleges the purchase by plaintiff from defendant of a heating unit to be installed in a gasoline service station which it was erecting for lease to Esso Standard Oil Company, a purpose known to defendant, and the warranty of defendant against defects in materials, design and workmanship of the unit. Its delivery directly to plaintiff's premises, payment of the purchase price and its malfunction because of defects in the manufacturing process resulting in damage to plaintiff are also averred. Defendant answered by way of a general denial and moved for summary judgment upon the supporting affidavits of one of its attorneys and of its assistant treasurer. Special Term in granting judgment held that the moving papers demonstrated that there was no privity of contract between the parties and hence no basis upon which a recovery could be had for the alleged breach of the warranty. Plaintiff's attorney had submitted an affidavit in opposition to the motion which the court disregarded for the reason that it was not shown to have been made with personal knowledge of the facts. With this estimate of its probative value we agree. However, defendant's affidavits are equally deficient in the same respect and contain only bald conclusory assertions that the heating unit was sold to Esso Standard Oil Company and not to plaintiff, arguments of fact and law in similar vein and other irrelevancies. The annexed copy of defendant's invoice in itself is not summarily devastative of plaintiff's cause of action. Thus, the moving papers were insufficient to suffice the evidentiary burden imposed by the summary judgment rule. Since the deficiency in the affidavits on both sides cuts against the movant rather than the plaintiff, the motion should not have been granted. ( O'Connor-Sullivan, Inc., v. Otto, 283 App. Div. 269, motion for leave to appeal denied 283 App. Div. 762.) Order and judgment reversed, on the law and the facts and motion denied, with costs. Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.