Bova v. Vinciguerra

• Decision Date: 07 April 1988
• Citation: 139 A.D.2d 797,526 N.Y.S.2d 671
• Parties: Edward N. BOVA, et al., Plaintiffs, and Donna Deuel, et al., Respondents, v. Benjamin J. VINCIGUERRA, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 671

526 N.Y.S.2d 671

139 A.D.2d 797

Edward N. BOVA, et al., Plaintiffs, and Donna Deuel, et al., Respondents, v. Benjamin J. VINCIGUERRA, et al., Appellants.

Supreme Court, Appellate Division,

Third Department.

April 7, 1988.

Nicholas D. Morsillo, Schenectady, for Benjamin Vinciguerra and another, appellants.

Brown & Brown (Paul F. Brown, of counsel), Ballston Spa, for Gladys Ecock, plaintiff.

Walter T. Burke, Albany, for Joan Lefkovitz and others, plaintiffs.

Before MAHONEY, P.J., and KANE, CASEY, LEVINE and HARVEY, JJ.

KANE, Justice.

Appeal from an order of the Supreme Court (Ford, J.), entered June 29, 1987 in Saratoga County, which denied defendants' motions to strike the note of issue filed by various plaintiffs.

In 1980, plaintiffs commenced the instant action against defendants alleging, inter alia, that defendants had wrongfully erected a fence on plaintiffs' common easement over defendants' lands. Plaintiffs claimed that this resulted in an obstruction of their access to a boat launch and dock located on Saratoga Lake, Saratoga County. The facts giving rise to the instant appeal insofar as we are able to discern them from the parties' briefs and from the record before us are as follows. Apparently, a note of issue was initially filed in 1982 but was withdrawn and, thereafter, sometime in December 1986, a second note of issue was filed. It appears that several plaintiffs named in the original complaint and in the first note of issue were not named in the second note of issue. As a result, defendants Benjamin J. Vinciguerra and Ouna Vinciguerra moved to strike the note of issue and defendant Joseph J. Charon also moved for the same relief. Defendants claimed that certain plaintiffs had died since commencement of the action and certain other plaintiffs had sold their properties to third persons. Defendants argued that a substitution of parties was therefore required before the suit could proceed further. Defendants' motions were opposed by those plaintiffs named in the second note of issue. Supreme Court denied defendants' motions on the ground that the affidavits made to support these motions were "factually insufficient to support the conclusory allegations therein". Defendants have appealed.

We affirm. Defendants claim that plaintiff George Bowers died and that his wife, plaintiff Helen Bowers, thereafter conveyed the property. They also claim that plaintiffs Edward N. Bova, Eleanor T. Bova and Jessie Wienclawski have sold their properties. None of these plaintiffs are participating in the instant appeal and they no longer appear to be participating in the action. The remaining plaintiffs who are participating on this appeal, while not specifically conceding these facts, do not dispute them. However, in the papers before Supreme Court, defendants made no such specific assertions as to which parties had died or which parties had transferred their interests. The affidavits submitted in support of defendants' motions were made by defendants' attorneys and not by defendants themselves and, aside from the attorneys' broad statements that "certain of the plaintiffs have sold their premises" and that "certain other plaintiffs have become deceased", the affidavits did not specifically allege any facts to support these statements and no evidence to support these assertions was ever provided.

An affidavit in support of a motion is to be made by those with knowledge of the facts and:

The attorney's affidavit, unless he happens to have first-hand knowledge--which is the exception rather than the rule--has no probative force (Siegel, N.Y.Prac. § 281, at 337).

Personal knowledge is not presumed from a mere positive averment of the facts (1 Carmody-Wait 2d, N.Y.Prac. § 4:28, at 644). A court should be shown how the deponent knew or could have known such facts and if there is no evidence from which the inference of personal knowledge can be drawn then it is presumed that such does not exist (1 Carmody-Wait 2d, N.Y.Prac. § 4:28, at 644-645). Here, the affidavits were clearly insufficient. Not only was there a failure to offer any evidence to support the assertions made therein, but the affidavits simply contained conclusory statements as to the status of certain plaintiffs involved in the action. Therefore, Supreme Court properly denied defendants' motions on this basis.

Even were we to accept the specific allegations currently set forth by defendants on this appeal, we still find them insufficie to warrant striking the note of issue. As to the claim that George Bowers died, it is true that when a plaintiff dies all proceedings as a matter of law are stayed until an order of...