U.S. v. Alessi, 837
| Decision Date | 04 June 1979 |
| Docket Number | D,No. 837,837 |
| Parties | UNITED STATES of America, Appellee, v. Eugenia M. ALESSI, a/k/a Eugenia M. Nixon, and Thomas Croucher, Appellants. ocket 79-6008. |
| Court | U.S. Court of Appeals — Second Circuit |
Thomas Croucher, Nixon & Croucher, Canandaigua, N. Y., pro se and for appellant Alessi.
David Rothenberg, Asst. U. S. Atty., Rochester, N. Y. (Richard J. Arcara, U. S. Atty. for the Western District of New York, Buffalo, N. Y., Gerald J. Houlihan, Asst. U. S. Atty., Rochester, N. Y., of counsel), for appellee.
Before OAKES and GURFEIN, Circuit Judges, and PIERCE, District Judge. *
Appellants Croucher and Alessi appeal from an order of the United States District Court for the Western District of New York, Harold P. Burke, Judge, granting summary judgment to the United States. The court found that appellants had not presented any genuine issue of material fact to defeat the Government's motion for the foreclosure and sale of property mortgaged to the Veterans Administration. Appellants argue that the order granting summary judgment should be reversed because the affidavit submitted by the Assistant United States Attorney was not made on personal knowledge as required by Fed.R.Civ.P. 56(e) 1 and therefore must be excluded.
Appellants object to six paragraphs in the Assistant United States Attorney's affidavit. Although it is true that there are certain statements in these paragraphs that do not appear to be made on personal knowledge 2 and hence are inadmissible, the entire affidavit need not be stricken. The district court judge was free to disregard the inadmissible paragraphs and consider the rest of the affidavit. Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 578-79 (2d Cir. 1969), Citing 6 Moore's Federal Practice P 56.22(1), at 2817 (2d ed. 1965); See also 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2738, at 707-08 (1973).
We affirm the order below because the district court properly granted summary judgment even without reference to the six challenged paragraphs. The question that Judge Burke resolved was a question of law: whether the statute of limitations had run, thus precluding the Government's foreclosure action. In the court below, the parties disputed none of the dates as a factual matter, only the legal effect of the actions taken. Appellants argued that the cause of action accrued at the time of default; the Government argued for the time of its election to foreclose, which was the initiation of suit. The judge had before him both the terms of the original bond and mortgage 3 and the dates of service. Because, by the terms of the agreement, the principal did not become due until the Government elected to accelerate and because appellants presented no facts suggesting an election prior to the initiation of suit, 4 the court was correct in granting summary judgment to the United States.
Accordingly, the order is affirmed.
* Of the Southern District of New York, sitting by designation.
1 Rule 56. Summary Judgment
(e) Form of Affidavits; Further Testimony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this...
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