Westlaw Delivery Summary Report for CARBONE,ROBERT

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Client Identifier: ROBERT CARBONE
Database: NYOFFFMFIND
Citation Text: 66 N.Y.2d 965
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Documents: 1
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66 N.Y.2d 965 FOR EDUCATIONAL USE ONLY
66 N.Y.2d 965
(Cite as: 66 N.Y.2d 965, 489 N.E.2d 755)
GTF Marketing, Inc. v. Colonial Aluminum Sales,
Inc.
66 N.Y.2d 965, 498 N.Y.S.2d 786
N.Y. 1985.
66 N.Y.2d 965489 N.E.2d 755, 498 N.Y.S.2d 786
GTF Marketing, Inc., Appellant,
v.
Colonial Aluminum Sales, Inc., Respondent.
Court of Appeals of New York
Submitted November 15, 1985;
decided December 17, 1985
CITE TITLE AS: GTF Mktg. v Colonial Aluminum
Sales
SUMMARY
Appeal from an order of the Appellate Division of
the Supreme Court in the Second Judicial Depart-
ment, entered April 22, 1985, which (1) reversed,
on the law, an order of the Supreme Court at Spe-
cial Term (Paul T. D'Amaro, J.), entered in Suffolk
County, denying defendant's motion for summary
judgment, (2) granted defendant's motion, and (3)
dismissed the complaint.
GTF Mktg. v Colonial Aluminum Sales, 108 AD2d
86, affirmed.
HEADNOTES
Judgments--Summary Judgment--Sufficiency of
Affidavit
(1) In a breach of contract action, an order of the
Appellate Division which reversed an order deny-
ing defendant's motion for summary judgment and
dismissed the complaint, should be affirmed; al-
though it was incorrect to apply collateral estoppel,
the Appellate Division correctly dismissed the com-
plaint owing to the insufficiency of plaintiff's sub-
mission in opposition to summary judgment. In the
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 1
face of defendant's affidavit and allegations that
plaintiff failed to perform, the affidavit of plaintiff's
counsel submitted in opposition was insufficient
since the allegation that a question of fact existed as
to performance under the agreement was plainly not
made upon personal knowledge, and an affidavit or
affirmation of an attorney without personal know-
ledge of the facts cannot supply the evidentiary
showing necessary to defeat defendant's motion.
APPEARANCES OF COUNSEL
Howard L. Blau for appellant.
Jessel Rothman for respondent.
OPINION OF THE COURT
The order of the Appellate Division should be af-
firmed, with costs.
By letter agreement dated March 5, 1981 plaintiff
(GTF Marketing) agreed to supply defendant
(Colonial Aluminum Sales) with the names, ad-
dresses and telephone numbers of homeowners in
Queens, Nassau and Suffolk Counties interested in
Colonial's aluminum siding at a cost of $10 per
“lead.” According to the agreement, GTF would
mail out about 200,000 data processing cards con-
taining “screening questions” asking the recipients
whether they were planning to buy aluminum sid-
ing and other products within six months. In its
verified complaint, GTF alleged that it had supplied
12,463 “leads,” and that Colonial had refused to
pay the sum of $124,630 which was owing to GTF.
After joinder of issue, Colonial moved for summary
judgment, *967 contending that GTF was precluded
based upon factual findings in two other cases in
which GTF had sued other companies on similar
contracts and lost. In support of its motion, Coloni-
al submitted the affidavit of its president, Michael
Longo, in which he discussed the other actions, and
to which were annexed as exhibits copies of the or-
al decisions in those actions containing the al-
legedly preclusive factual findings. In his affidavit,
66 N.Y.2d 965 FOR EDUCATIONAL USE ONLY
66 N.Y.2d 965
(Cite as: 66 N.Y.2d 965, 489 N.E.2d 755)
Longo also swore that GTF had not supplied Colo-
nial with any “leads” as required by the contract,
and that “Colonial has received nothing which
would entitle GTF to collect any money under the
terms of the letter” agreement. In opposition, GTF
submitted only the affidavit of its attorney purport-
ing to set forth certain facts about the formation of
the contract and reciting that “the issue of whether
performance under or breach of the agreement has
occurred is also a question of fact.” Special Term
denied the motion, but a divided Appellate Division
reversed. The majority held that GTF was barred by
the doctrine of third-party issue preclusion and, fur-
ther, that GTF's papers in opposition were insuffi-
cient to raise a triable issue of fact. We conclude
that, although collateral estoppel does not apply,
the Appellate Division correctly dismissed the com-
plaint due to the insufficiency of GTF's affidavit in
opposition to summary judgment.
Although the contracts in the prior actions and in
this one are different, Colonial argues that the per-
formance was the same, and that the trial judge ne-
cessarily found that GTF had fraudulently failed to
send out any data processing cards. It is not clear
from the decision, however, whether the trial court
specifically and necessarily decided that issue, and
third-party issue preclusion therefore does not lie
(see, O'Connor v G & R Packing Co., 53 NY2d
278). Because the decision was delivered orally im-
mediately following trial, it contains a number of
observations, none of which can be said with cer-
tainty to be dispositive of the issue before us. It
would have been highly desirable for the trial court
to have issued an opinion containing findings, par-
ticularly since the court knew at the time of its de-
cision that this action was pending.
The opposing affidavit was, however, insufficient.
A defendant moving for summary judgment has the
initial burden of coming forward with admissible
evidence, such as affidavits by persons having
knowledge of the facts, reciting the material facts
and showing that the cause of action has no merit (
CPLR 3212 [b]; Zuckerman v City of New York, 49
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
NY2d 557, 562).*968 However, once the moving
party has satisfied this obligation, the burden shifts;
“the party opposing the motion must demonstrate
by admissible evidence the existence of a factual is-
sue requiring a trial of the action or tender an ac-
ceptable excuse for his failure so to do, and the sub-
mission of a hearsay affirmation by counsel alone
does not satisfy this requirement” (Zuckerman v
City of New York, 49 NY2d 557, 560,supra).
Here, Colonial satisfied its burden. Longo's affi-
davit stated that, although GTF had provided names
of homeowners to Colonial, Longo personally and
Colonial in the ordinary course of its business de-
termined that the names were useless and not
“leads.” Some had never sent in data processing
cards; others said they had been promised free gifts;
many hung up, and others could not be called be-
cause GTF had not supplied telephone numbers.
Longo concluded that he “could not make any use
of the purported 'leads' supplied to us by GTF. They
were just names, and definitely were not 'leads.' ”
In the face of Longo's affidavit and allegations that
GTF failed to perform, the affidavit of GTF's coun-
sel submitted in opposition was insufficient. The al-
legation that a question of fact exists as to perform-
ance under the agreement is plainly not made upon
personal knowledge. As we have previously noted,
an affidavit or affirmation of an attorney without
personal knowledge of the facts cannot “supply the
evidentiary showing necessary to successfully resist
the motion” (Roche v Hearst Corp., 53 NY2d 767,
769). “Such an affirmation by counsel is without
evidentiary value and thus unavailing” (Zuckerman
v City of New York, 49 NY2d 557, 563,supra).
Thus, on the papers submitted the uncontroverted
fact is that GTF did not perform or provide Coloni-
al with any “leads” under the agreement, and GTF's
claim that Colonial breached the agreement by fail-
ing to pay for the services rendered should there-
fore be dismissed.
Chief Judge Wachtler and Judges Jasen, Meyer, Si-
mons, Kaye and Alexander concur; Judge Titone
taking no part.
66 N.Y.2d 965 FOR EDUCATIONAL USE ONLY Page 3

66 N.Y.2d 965
(Cite as: 66 N.Y.2d 965, 489 N.E.2d 755)

Order affirmed, with costs, in a memorandum.

Copr. (c) 2010, Secretary of State, State of New

York
N.Y. 1985.
GTF Mktg. v Colonial Aluminum Sales

66 N.Y.2d 965

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© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.