Marine Midland Bank v. Hall
| Decision Date | 20 February 1980 |
| Citation | 74 A.D.2d 729,425 N.Y.S.2d 693 |
| Parties | MARINE MIDLAND BANK, Appellant, v. Audrey G. HALL and Edwin J. Hall, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Phillips, Lytle, Hitchcock, Blaine & Huber by David A. Sands, Buffalo, for appellant.
Samuel S. Sansone, Lockport, for respondents.
Before CARDAMONE, J. P., and SIMONS, HANCOCK, SCHNEPP and WITMER, JJ.
Special Term improperly vacated its prior order granting partial summary judgment against defendants on their unconditional and absolute guaranty. In his answering affidavit in response to the motion for summary judgment defendant Edwin J. Hall raised issues pertaining only to the amount of the balance due and to the bank's improper handling of the security. No affidavit from defendant Audrey G. Hall was submitted. The order granting summary judgment was dated March 1, 1977. The motion to vacate the order of summary judgment was based on an affidavit of defendants' attorney, dated August 8, 1977, made upon information obtained from his clients, setting forth in conclusory and general terms defenses of fraud and duress.
To defeat summary judgment one must disclose in evidentiary form the evidence on which he relies. " 'Bald conclusory assertions, even if believable, are not enough (to defeat summary judgment)' " (Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342, 357 N.Y.S.2d 478, 481, 313 N.E.2d 776, 778, quoting Ehrlich v. American Moninger Greenhouse Mfg. Corp., 26 N.Y.2d 255, 259, 309 N.Y.S.2d 341, 344, 257 N.E.2d 890, 892; see also Mallad Constr. Corp. v. County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 290, 344 N.Y.S.2d 925, 929, 298 N.E.2d 96, 99; Indig v. Finklestein, 23 N.Y.2d 728, 296 N.Y.S.2d 370, 244 N.E.2d 61). The affidavit of an attorney having no personal knowledge of the facts has no probative value and should be disregarded (Mtr. of Johnson v. Sharpe, 66 A.D.2d 955, 411 N.Y.S.2d 451; Starbo v. Ruddy et al., 66 A.D.2d 950, 411 N.Y.S.2d 707). Thus, the affidavit of defendants' attorney raised no factual issue that would warrant denial of the motion.
Furthermore, there was no valid basis for vacating the order under either paragraph 2 or paragraph 3 of subdivision (a) of CPLR 5015. There was no "newly-discovered" evidence presented (see CPLR 5015, subd. (a), par. 2) only the hearsay conclusions of the attorney. Moreover, if, as defendants claim, there were facts giving rise to fraud or duress in the execution of the guaranty,...
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