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eBook details

• Title: Metropolitan Bank Syracuse v. Byron L. Hall
• Author : Supreme Court of New York
• Release Date : January 28, 1976
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 70 KB

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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 of the General Business Law as well as subdivision 2 of section 3-101 of the General Obligations Law and find neither here applicable to accord any defense to plaintiff's action. (Appeal from judgment of Onondaga Supreme Court - summary judgment.) Present - Moule, J.P., Mahoney, Dillon, Goldman and Witmer, JJ.

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