Bethlehem Steel Corp. v. Solow

Murphy, P. J., and Lane, J.,

dissent in a memorandum by Lane, J., as follows: We would reverse and deny summary judgment in toto. A motion for summary judgment must be supported by an affidavit "by a person having knowledge of the facts” (CPLR 3212, subd [b]). That is conspicuously absent in this case. We see no reason why in a claim for this large sum of money there could not be an affidavit by a responsible officer or employee of Bethlehem Steel Corporation stating that according to their records so much work was done, involving so many tons of steel at such-and-such a price, resulting in an over-all liability of so many dollars against which so much had been received, leaving a balance of so much owed. Instead there is an affidavit by an attorney with many exhibits attached, and convoluted arguments based on alleged admissions in defendants’ surprisingly inartistic pleadings or equivocal admissions made in depositions by persons without knowledge of the facts. The insufficiency and conclusory nature of defendants’ affidavits and proof do not make up for this defect in plaintiff’s proof. Resettled order signed and filed.