Opinion
December 1, 1987
Appeal from the New York County (Irving Kirschenbaum, J.).
D.B.M., doing business as New York Camera, is a New York corporation, which engages in a nationwide business of mail- and telephone-order sales to consumers of photographic and electronic equipment and supplies. The individual respondents are officers of D.B.M.
In August 1985, the petitioner instituted a proceeding, pursuant to section 63 (12) of the Executive Law and sections 349, 350, and 396-m of the General Business Law, against the respondents, by a notice of petition, the petition, and an affirmation by an Assistant Attorney-General (AAG). The petitioner sought a permanent injunction to prevent respondents from engaging in certain alleged deceptive and illegal business practices, restitution and damages, civil penalties for alleged false advertising, and costs. Our examination of the petition indicates that, in substance, petitioners claim respondents engage in: (1) fraudulent conduct, by repeatedly and persistently failing to ship merchandise as promised, and to issue refunds promptly; and, (2) false and deceptive advertising.
In their answer, respondents assert, pursuant to CPLR 404 (a) as an affirmative defense, that the petition should be dismissed, since it is unsupported by competent proof, in that, inter alia, the 118 complaint letters attached to the affirmation of the AAG are unsworn, and his affirmation does not indicate that he has personal knowledge of the details of any of the complaints.
Based upon the papers submitted, and without a hearing, Special Term granted petitioner's petition against respondents for a permanent injunction, civil penalties, and costs.
We find Special Term erred.
The Court of Appeals has held that the same summary judgment standards that apply to actions are also applicable to special proceedings brought under CPLR article 4 (Matter of Port of N Y Auth. [62 Cortlandt St. Realty Co.], 18 N.Y.2d 250, 255). In order "[t]o obtain summary judgment it is necessary that the movant establish his cause of action * * * 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067). Accordingly, we find the proof offered by petitioners, which, in substance, consists only of unsworn complaints and an affirmation of an attorney who does not have knowledge of the facts, insufficient to justify "the summary disposition accorded [by Special Term]" (State of New York v General Motors Corp., 48 N.Y.2d 836, 838).
Accordingly, respondents are entitled "to a hearing, with the opportunity to present evidence on the issues raised in the proceeding" (Matter of People v Long Is. Home, 32 A.D.2d 618).
We agree with respondents' position, as set forth in their brief, that at this juncture, the relief granted, at best, should be limited to a preliminary injunction, and not a permanent injunction.
Accordingly, we modify the order and judgment to the extent of substituting a preliminary injunction for a permanent one.
Concur — Sandler, J.P., Ross, Asch, Kassal and Ellerin, JJ.