Opinion
March 29, 1976
Order, Supreme Court, New York County, entered November 17, 1975, to the extent that it denied plaintiff's motion for summary judgment without prejudice to renewal after defendant completes discovery, unanimously affirmed, with $60 costs and disbursements to respondent. Study of the record in this action to recover $10,000 for goods sold and delivered and $1,000 for conversion of goods erroneously shipped to defendant mandates the conclusion that Special Term correctly perceived that facts essential to justify opposition to plaintiff's motion may exist, but cannot presently be stated without the defendant being permitted discovery. It is noted that defendant subsequent to the date of the orders alleged in the complaint moved its place of business from New York County to Atlanta, Georgia, which relocation has seemingly frustrated defendant in its effort to demonstrate a real defense. Shipping receipts for the alleged goods were absent from the movant's papers and the correspondence and other documentary evidence are not sufficiently adequate to invoke the granting of summary judgment (see Indig v Finkelstein, 23 N.Y.2d 728).
Concur — Kupferman, J.P., Murphy, Lupiano, Silverman and Nunez, JJ.