90 A.D.2d 466 | N.Y. App. Div. | 1982
Order of the Supreme Court, New York County (Price, J.), entered December 3, 1981, which, inter alia, granted plaintiff’s motion for summary judgment solely as to liability and directed a trial as to the reasonable value of plaintiff’s services and denied plaintiff’s motion for the dismissal of defendants’ counterclaim modified, on the law, to the extent of reversing that part of the order which denied plaintiff’s motion for entry of judgment, granting said motion for entry of judgment in favor of plaintiff in the sum of $96,975.65, and otherwise affirmed, without costs. Plaintiff, a partnership engaged in the practice of law, commenced this action to recover unpaid legal fees and disbursements in the total sum of $96,975.65 from defendants, former clients of the partnership. Plaintiff’s motion for summary judgment was supported by evidence that two separate accounts had been stated between the parties in the total sum of $96,975.65. In response to this motion, defendants served three “sworn” documents, the Condren affidavit, the Friedberg affirmation and the Quasha “affidavit”. The Condren affidavit contained general allegations of protest concerning the debt underlying the first account stated. These were insufficient to raise a triable issue. (Fink, Weinberger, Friedman, Berman & Lowell u Petrides, 80 AD2d 781.) The Friedberg affirmation was not sufficient to raise a triable issue since it was by counsel who did not have personal knowledge of what transpired. The heart of defendants’ opposition was contained in the Quasha affidavit which was neither signed nor sworn to by Mr. Quasha but rather by Mr. Condren pursuant to a power of attorney. The statutory powers granted to an attorney in fact under section 5-1501 of the General Obligations Law, do not include the power to swear or sign an affidavit in the name of the principal. Such a purported affidavit lacks any probative effect. “An affidavit purported to be that of one person, but signed and sworn to by another, is a nullity.” (1 NY Jur 2d, Acknowledgments, Affidavits, Oaths, Notaries and Commissioners, § 58, at p 257.) Defendants therefore failed to produce evidentiary proof in admissible form sufficient to defeat plaintiff’s claim on the accounts stated. The court below was correct, however, in denying the motion for summary judgment dismissing the counterclaim alleging malpractice. The plaintiff’s conclusory assertions regarding defendants’ counterclaim are not sufficient to establish its burden of setting forth evidentiary facts to prove that triable issues do not exist, even where the opposing papers are insufficient. (O’Connor-Sullivan, Inc. v Otto, 283 App Div 269.) Concur — Kupferman, J. P., Ross, Silverman and Asch, JJ.