Opinion
Argued February 16, 1983
Decided March 23, 1983
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, NATHANIEL T. HELMAN, J.
Lawrence B. Kahn for appellant.
Harold Weisblatt and Theodore M. Finkel for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, for reasons stated in the opinion of Justice ARNOLD L. FEIN ( 87 A.D.2d 447), to which we but add two comments.
First, that defendants had not completed discovery did not interdict the grant of summary judgment ( Griffin v Cortland Mem. Hosp., 85 A.D.2d 837, mot for lv to app den 56 N.Y.2d 507). In particular, defendants, in opposing plaintiff's motion, failed to tender an affidavit or affidavits averring the existence, in admissible form, of proof which would present a triable issue of fact or, if hearsay, an acceptable excuse for the failure to present firsthand knowledge ( Egleston v Kalamarides, 58 N.Y.2d 682, 684; Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068).
Second, Special Term's grant of summary judgment on plaintiff's claim despite the pendency of defendant's counterclaim was not an abuse of discretion, without more, since it was not supported by a showing of merit ( M S Mercury Air Conditioning Corp. v Rodolitz, 24 A.D.2d 873, 874, affd 17 N.Y.2d 909).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG, MEYER and SIMONS concur.
Order affirmed, with costs, in a memorandum.