Opinion
March 8, 1976
In an action (1) against Jupiter Supply Co., Inc., to recover for goods sold and delivered and (2) against Luna Industries, Inc., on its guarantee of payment for such goods, Luna Industries, Inc., appeals from a judgment of the Supreme Court, Westchester County, dated May 5, 1975, which, inter alia, granted the plaintiff's motion for summary judgment as against it. Judgment affirmed, without costs or disbursements. A motion for summary judgment cannot be defeated by conclusory statements devoid of evidentiary facts showing a bona fide issue requiring a trial. While appellant asserts the existence of a valid affirmative defense, it has not alleged evidentiary facts showing that any of the materials delivered by plaintiff were delivered late or improperly, or that it was overcharged, or that plaintiff delivered improper or defective merchandise, or that materials delivered were returned (see General Bldg. Supply Corp. v Shapn, Inc., 35 A.D.2d 550). Furthermore, the affidavit of appellant's attorney must be disregarded because of his failure to profess personal knowledge of the underlying facts (see V.A.W. of Amer. v General Elec. Co., 38 A.D.2d 989, 990; 4 Weinstein-Korn-Miller, N Y Civ Prac, par 3212.05); objection to this affidavit was made by plaintiff at Special Term (see Mackenzie v Rothschild, 267 App. Div. 989, mod 294 N.Y. 800; Universal C.I.T. Credit Corp. v Murphy, 33 Misc.2d 74). Martuscello, Acting P.J., Latham, Rabin and Titone, JJ., concur.