15 A.D.2d 934 | N.Y. App. Div. | 1962
In our opinion, the record shows the existence of triable issues of fact. In any event, the material facts as to the total amount of the gross sales within the period or periods of time in question are clearly not within plaintiffs’ personal knowledge and apparently are exclusively within defendant’s knowledge. For that reason alone summary judgment should not have been granted (Moller v. Candlewood Constr. Corp., 12 A D 2d 959; Hogan v. Ciancimino 12 A D 2d 501; Vignola v. Britts, 11 A D 2d 801; Ardisco, Ltd. v. Taconic Holding Corp., 10 A D 2d 973; De France v. Oestrike, 8 A D 2d 735). We also believe that under all the circumstances disclosed, the plaintiffs ought to be allowed an opportunity to develop the facts through an examination before trial before summary judgment is granted against them (see Lori-Jay Knitting Mills v. Columbia Knitting Mills, 21 Misc 2d 537; Bartels v. Rubel Corp., 205 Misc 673). Ughetta, Acting P. J., Christ, Brennan, Hill and Rabin, JJ., concur.
