Opinion
October 31, 1967
Appeal from an order and judgment of the Supreme Court, Albany County, granting respondent's motion for summary judgment. On a prior appeal this court reversed an order and judgment granting summary judgment in favor of the appellants holding that on the record it could not be found as a matter of law that the agreement involved was illegal per se ( 26 A.D.2d 719). Thereafter, our decision was amended so as to provide that respondent's motion for summary judgment be denied as well ( 26 A.D.2d 790). Subsequently, respondent brought the instant motion relying upon all the pleadings and prior proceedings as additionally buttressed by affidavits of the respondent and of his attorney. Appellants' attorney submitted an affidavit in opposition. In our opinion the record still contains factual issues which respondent's affidavit as to matters peculiarly within his knowledge and that of his attorney cannot satisfactorily resolve and thus summary judgment should have been denied ( Sillman v. Twentieth Century-Fox, 3 N.Y.2d 395; Colateral Factors Corp. v. Kestenberg, 28 A.D.2d 524; Crowley's Milk Co. v. Klein, 24 A.D.2d 920). Order and judgment reversed, on the law and the facts, and motion for summary judgment denied, without costs. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.