438 A.2d 440 | Conn. Super. Ct. | 1981
The plaintiff in the first count sought to recover a business debt incurred by the defendant Edward L. O'Brien, Jr. In the second count the plaintiff alleged that defendant Michael Ringler was legally responsible under the Bulk Transfers Act1 for the defendant O'Brien's debt as a prospective transferee in possession of the debtor's business. The plaintiff also alleged that the negotiations for the sale of O'Brien's business to Ringler were conducted fraudulently so as to prevent creditors from collecting their debts. After the pleadings were closed, the defendant Ringler moved for summary judgment on *816 the ground that no transfer of the business took place because of O'Brien's inability "to properly convey said premises," and that "all proceeds belonging to Mr. O'Brien were turned over by me." The court granted this motion for summary judgment. The plaintiff has appealed, claiming that the court erred in ruling (1) that there was no genuine issue of fact and (2) that notwithstanding Ringler's noncompliance as transferee with Bulk Transfers Act, he was not personally liable to the plaintiff.
In the present case, the plaintiff claims that the issue of fraud was one the court ignored in granting summary judgment. Apart from its complaint, the plaintiff's only averment of fraud is in paragraph sixteen of its counter affidavit.3 This affidavit, sworn to by Henry Smernoff, president of the plaintiff company, is defective. It is not made on the affiant's personal knowledge and does not set forth such facts as would be admissible in evidence. Nor does it show affirmatively that the affiant is competent to testify to the matters stated therein. In contrast, defendant Ringler's affidavit does meet the requirements of Practice Book 381. The trial court was correct in granting defendant Ringler's motion for summary judgment.
There is no error.
In this opinion SHEA and DALY, Js., concurred.