Opinion
2012-03-20
Jack JAFFA, et al., appellants, v. AFRODIAM, LTD., et al., respondents.
Alan B. Hertz, P.C., Brooklyn, N.Y. (Debbie Z. Benasaraf of counsel), for appellants. Koss & Schonfeld, LLP, New York, N.Y. (Simcha D. Schonfeld of counsel), for respondents.
Alan B. Hertz, P.C., Brooklyn, N.Y. (Debbie Z. Benasaraf of counsel), for appellants. Koss & Schonfeld, LLP, New York, N.Y. (Simcha D. Schonfeld of counsel), for respondents.
In an action to recover damages for breach of an oral agreement, the plaintiffs appeal from an order of the Supreme Court, Kings County (Schack, J.), dated December 13, 2010, which granted the defendants' motion for summary judgment dismissing the amended complaint.
ORDERED that the order is affirmed, with costs.
In support of their motion for summary judgment dismissing the amended complaint, the defendants submitted evidence establishing that some of the purported loan amounts the plaintiffs were seeking to recover from them were investments for precious stones that the plaintiffs risked losing if, as happened, no profit was made, some amounts were never advanced to them, and some were fully repaid. Accordingly, the defendants established, prima facie, their entitlement to judgment as a matter of law dismissing the complaint ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
In opposition, the plaintiffs failed to raise a triable issue of fact. The affidavit of the plaintiff Jack Jaffa presented feigned issues of fact designed to avoid the consequences of his earlier deposition testimony ( see Hunt v. Meyers, 63 A.D.3d 685, 879 N.Y.S.2d 725; Colucci v. AFC Constr., 54 A.D.3d 798, 799, 863 N.Y.S.2d 767; Tejada v. Jonas, 17 A.D.3d 448, 792 N.Y.S.2d 605; Columbus Trust Co. v. Campolo, 110 A.D.2d 616, 616–617, 487 N.Y.S.2d 105, affd. 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282), the affidavit of the comptroller of the plaintiff Jack Jaffa & Associates Corp. was not based on personal knowledge of the facts or evidence in the record ( see Beaucejour v. General Linen Supply & Laundry Co., Inc., 39 A.D.3d 444, 445, 833 N.Y.S.2d 228; Leslie v. Splish Splash at Adventureland, 1 A.D.3d 320, 321, 766 N.Y.S.2d 599), and the remaining evidence submitted in opposition offered only vague, conclusory, and equivocal assertions regarding payments or terms of the purported loans ( see S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342, 357 N.Y.S.2d 478, 313 N.E.2d 776; Mezger v. Wyndham Homes, Inc., 81 A.D.3d 795, 796, 916 N.Y.S.2d 641; Alter v. Levine, 57 A.D.3d 923, 924, 870 N.Y.S.2d 464; Bachurski v. Polish & Slavic Fed. Credit Union, 33 A.D.3d 739, 740, 826 N.Y.S.2d 281; 66 Henry St. Corp. v. Harrison, 256 A.D.2d 326, 682 N.Y.S.2d 616).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the amended complaint.