Summary
finding affidavit of merit and evidentiary showing necessary to support motion for leave to amend
Summary of this case from SALT AIRE TRD. v. SIDLEY AUSTIN BROWN WOODOpinion
April 15, 1999
Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).
In this action to recover for labor and services performed in conjunction with the renovation and interior design of defendant's apartment, the second cause of action of plaintiff's verified complaint sets forth "the items of his claim and the reasonable value or agreed price of each" (CPLR 3016 [f]). Plaintiff moved for partial summary judgment pursuant to CPLR 3212 predicated on defendant's failure to specify, in his verified answer, "those items he disputes and whether in respect of delivery or performance, reasonable value or agreed price" (CPLR 3016 [f]). The motion is supported by plaintiff's affidavit and the affirmation of his attorney.
In response to plaintiff's motion, defendant's attorney submitted an opposing affirmation, in which he argued that defendant's counterclaims go "to the very heart of this case" and that summary judgment should not be granted where the opposing claims are intertwined (citing Wolosoff v. Wolosoff, 54 A.D.2d 651). In addition, defendant, by his attorney, sought leave to amend his answer (which had been verified by counsel) to include the requisite itemization pursuant to CPLR 3016 (f). This application was also supported by counsel's affirmation in addition to the proposed amended answer, which was again verified by counsel. Supreme Court granted plaintiff's motion for partial summary judgment and denied leave to amend the answer, stating, "No showing whatsoever is made of the merits of the proposed amended pleading."
Defendant appeals from each and every part of this order. He argues that Supreme Court erred in denying his application for leave to amend the answer. In opposition, plaintiff contends, as he did before Supreme Court, that defendant's various submissions are insufficient either to oppose the motion for partial summary judgment or to support the application for leave to amend the answer.
On appeal, defendant confines his arguments to the Supreme Court's denial of leave to amend the pleadings. In so doing, he fails to advance any reason why partial summary judgment was improperly granted to plaintiff. In fact, by neglecting to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact" ( Zuckerman v. City of New York, 49 N.Y.2d 557, 562), defendant has failed to oppose plaintiff's summary judgment motion. It is well settled that "the opposing affidavit should indicate that it is being made by one having personal knowledge of the facts" ( Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342) and, therefore, the affidavit of counsel is of no probative value in opposing a motion for summary judgment ( Hasbrouck v. City of Gloversville, 102 A.D.2d 905, affd 63 N.Y.2d 916; Farragut Gardens No. 5 v. Milrot, 23 A.D.2d 889). As stated in Indig v. Finkelstein ( 23 N.Y.2d 728, 729), "The burden upon a party opposing a motion for summary judgment is not met merely by a repetition or incorporation by reference of the allegations contained in pleadings or bills of particulars, verified or unverified" (citations omitted).
Regarding defendant's contention that Supreme Court erred in denying his motion to amend the answer, the same evidentiary rules are applicable. As this Court stated the principle, a motion for leave to amend a pleading "must be supported by an affidavit of merits and evidentiary proof that could be considered upon a motion for summary judgment" ( Nab-Tern Constructors v. City of New York, 123 A.D.2d 571, 572, citing Walden v. Nowinski, 63 A.D.2d 586; see also, Non-Linear Trading Co. v. Braddis Assocs., 243 A.D.2d 107, 116; Cushman Wakefield v. John David, Inc., 25 A.D.2d 133). Moreover, this Court has expressly held that an amended pleading, verified by counsel, together with counsel's opposing affirmation are insufficient to defeat a summary judgment motion ( Sing Ping Cheung v. City of New York, 234 A.D.2d 91; see also, Martimez v. Columbia Presbyt. Med. Ctr., 238 A.D.2d 286, 287).
Contrary to defendant's contention, the mere assertion of counterclaims does not operate to preclude the award of accelerated judgment. In a similar case, also predicated on CPLR 3016 (f), the Appellate Division, Fourth Department, granted summary judgment to the plaintiff, despite finding that the amended answer raised issues of fact. The Court emphasized that "the affidavits in response to plaintiff's motion for summary judgment do not establish any bona fide triable issue", applying the settled rule that "[t]he verification and affidavit by defendant's attorney who lacked personal knowledge of the facts have no probative value and were properly disregarded" ( Two Clinton Sq. Corp. v. Gorin Stores, 51 A.D.2d 643, 644 [citing Israelson v. Rubin, 20 A.D.2d 668, affd 14 N.Y.2d 887; Di Sabato v. Soffes, 9 A.D.2d 297]). The Court further held (at 645) that "the mere assertion of a counterclaim unsupported by proof of its merit will not defeat summary judgment on an otherwise meritorious claim" (citing M S Mercury Air Conditioning Corp. v. Rodolitz, 24 A.D.2d 873, affd 17 N.Y.2d 909; Duban v. Platt, 23 A.D.2d 660, affd 17 N.Y.2d 526).
In sum, defendant's opposition to plaintiff's motion is insufficient to defeat summary judgment as a matter of law. In addition, his motion to amend the answer is unsupported by the necessary affidavit of merits.
Concur — Nardelli, J. P., Wallach, Lerner and Rubin, JJ.