Opinion
May 28, 1976
Appeal from the Onondaga Supreme Court.
Present — Moule, J.P., Mahoney, Dillon, Goldman and Witmer, JJ.
Judgment unanimously affirmed, without costs. Memorandum: Special Term's determination that no substantial issue of fact exists bearing upon defendants' liability to plaintiff was in all respects proper, warranting the grant of summary judgment. As this court held in Koppers Co. v Empire Bituminous Prods. ( 35 A.D.2d 906, 907, affd 30 N.Y.2d 609): "Although summary judgment may not be granted where the existence of a question of fact is in doubt or even arguable (Terranova v. Emil, 20 N.Y.2d 493; Falk v. Goodman, 7 N.Y.2d 87, 91), '"A shadowy semblance of an issue is not enough to defeat the motion"' (De Groes v. De Groes, 17 A.D.2d 930) and '"Bald conclusionary assertions, even if believable, are not enough"' (Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259). Absent claim that the facts are not within his control, a party cannot defeat a motion for summary judgment without laying bare his proof in evidentiary form (Di Sabato v. Soffes, 9 A.D.2d 297, 301; Kramer v. Harris, 9 A.D.2d 282)." Defendants' pleadings, affidavits and exhibits here submitted in opposition are insufficient factually to defeat the award of summary judgment in this case. Notwithstanding defendants' pleading deficiency in failing to allege affirmatively as required by CPLR 3018 (subd [b]), we have examined defendants' contentions concerning section 253 Gen. Bus. of the General Business Law as well as subdivision 2 of section 3-101 Gen. Oblig. of the General Obligations Law and find neither here applicable to accord any defense to plaintiff's action.