Opinion
June 16, 1986
Appeal from the Supreme Court, Nassau County (McCaffrey, J.).
Order reversed, with costs, and motion denied.
Scrutinizing the competing claims in a light most favorable to the party opposing the motion (see, Nojam Bros. v. CNA Ins. Cos., 113 A.D.2d 109, 114; Goldstein v. County of Monroe, 77 A.D.2d 232, 236), an issue of fact exists as to whether or not the defendant made timely payment. The fact that the defendant was unable to offer conclusive proof of payment is attributable to a denial of his requests for discovery rather than to the credibility of his defense. Special Term's negative assessment of the defendant's credibility, however improbable it might have found his representation to be, on the basis of the absence of written indicia of payment constitutes an inappropriate use of summary judgment (see, Plastoid Cable Corp. v. TFI Cos., 55 A.D.2d 930). In view of the prevailing circumstances whereby, after some 12 years of consistently making payments to each of six payees, the defendant allegedly defaulted on a payment to the plaintiff with whom he had recently been involved in bitterly contested litigation, we decline to invoke the drastic remedy of summary judgment. Weinstein, J.P., Niehoff, Kunzeman and Spatt, JJ., concur.