Opinion
No. 2010–3298KC.
2012-08-31
Excell GLISPY, Respondent, v. Howard Leon GLISPY and Abraham Kleinman, Appellants, and Robert L. Sims, Defendant.
Present: PESCE, P.J., RIOS and SOLOMON, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered August 13, 2010. The order, insofar as appealed from, denied so much of a motion as was brought by defendants Howard Leon Glispy and Abraham Kleinman for summary judgment dismissing the action.
ORDERED that the order, insofar as appealed from, is affirmed, without costs. Plaintiff seeks to recover, among other things, expenses he incurred in maintaining and improving certain premises which he owned with his brother, defendant Howard Leon Glispy, as tenants in common. Defendants moved for summary judgment dismissing the action. The motion was based upon an attorney's affirmation, deposition testimony and the bills furnished by plaintiff to the moving defendants. The Civil Court denied the motion on the ground that it failed to contain an affidavit by a person with knowledge of the facts (CPLR 3212[b] ). Defendants Howard Leon Glispy and Abraham Kleinman appeal.
We find that the absence of an affidavit from a person with knowledge of the facts was not fatal to the motion since the supporting proof was placed before the court by way of an attorney's affirmation annexing the deposition testimony of the plaintiff as well as documentary evidence furnished by plaintiff ( see Woods v. Zik Realty Corp., 172 A.D.2d 606 [1991] ). While the moving defendants argued that plaintiff was not entitled to recover for the services he had personally rendered to repair and maintain the premises, plaintiff's testimony at his examination before trial, relied upon by the movants, indicated that plaintiff had not personally performed all of the services necessary to maintain and repair the premises in question. Moreover, the additional documentary evidence demonstrated that plaintiff had incurred out-of-pocket expenses to repair and maintain the premises. Thus, with respect to the merits of the motion for summary judgment, we find that plaintiff's evidentiary proof sufficiently demonstrated the existence of triable issues of fact warranting a trial.
Accordingly, the order, insofar as appealed from, is affirmed.