58 N.Y.2d 1023 | NY | 1983
Memorandum.
The order of the Appellate Division should be affirmed, with costs, for reasons stated in the opinion of Justice Arnold L. Fein (87 AD2d 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 AD2d 837, mot for lv to app den 56 NY2d 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 NY2d 682, 684; Friends of Animals v Associated Fur Mfrs., 46 NY2d 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 AD2d 873, 874, affd 17 NY2d 909).
Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur.
Order affirmed, with costs, in a memorandum.
