Mascoli v. Mascoli
| Citation | 514 N.Y.S.2d 521,129 A.D.2d 778 |
| Decision Date | 27 April 1987 |
| Docket Number | No. 2,No. 1,1,2 |
| Parties | Anita MASCOLI, Respondent, v. Charles MASCOLI, Appellant, (Action). Anita MASCOLI, Respondent, v. Charles MASCOLI, Appellant. (Action). |
| Court | New York Supreme Court Appellate Division |
D'Agostino & D'Agostino, White Plains (A. Charles D'Agostino, of counsel), for appellant.
Anthony J. Colavita, P.C., Eastchester (Alan J. Silverman, of counsel), for respondent.
Before BROWN, J.P., and NIEHOFF, SULLIVAN and HARWOOD, JJ.
MEMORANDUM BY THE COURT.
In two separate actions brought by the plaintiff wife to recover arrears alleged to be due under the terms of a separation agreement between the parties, the defendant husband appeals, (1) in Action No. 1, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Buell, J.), entered May 8, 1986, as granted the plaintiff's motion for summary judgment, and denied his cross motion to dismiss the complaint, and (2) so much of a judgment of the same court, entered May 22, 1986, as is in favor of the plaintiff and against him in the principal sum of $7,752.02, and (3) in Action No. 2, from an order of the same court, entered September 19, 1986, which granted the plaintiff's motion for summary judgment, and (4) a judgment of the same court, entered October 1, 1986, which is in favor of the plaintiff and against him in the principal sum of $3,000.
ORDERED that the plaintiff is awarded one bill of costs.
The appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgments in the actions (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeals from the orders are brought up for review and have been considered on the appeals from the judgments (CPLR 5501 [a] [1] ).
It is well settled that in order to defeat a motion for summary judgment, the opposing party must "show facts sufficient to require a trial of any issue of fact" (see, CPLR 3212[b] ), and that showing must be made by producing evidentiary proof in admissible form (see, Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790, 390 N.E.2d 298).
In Action No. 1, the defendant merely submitted the affirmation of his attorney in opposition to the plaintiff's motion. Although the affirmation of an attorney, even if he has no personal knowledge of the facts, may sometimes serve as the vehicle for the submission of acceptable attachments providing evidentiary proof in admissible form (such as documents or transcripts), the submission of a hearsay affirmation by counsel alone does not satisfy this requirement (see, Zuckerman v....
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