Russo Realty Corp. v. Wilbert , 469 N.Y.S.2d 451 ( 1983 )

— In a real property partition action, plaintiff appeals from an order of the Supreme Court, Suffolk County (De Luca, J.), dated February 17, 1983, which denied its unopposed motion for summary judgment. Order reversed, on the law, with costs, motion granted, and matter remitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith. Special Term erred in refusing to consider the affirmation in support of plaintiff’s motion which was prepared by plaintiff’s attorney who had personal knowledge of the facts, and which was based on documentary evidence (see, e.g., Comptroller of State ofN. Y. v Gards Realty Corp., 68 AD2d 186; Getlan v Hofstra Univ., 41 AD2d 830, mot for lv to app dsmd 33 NY2d 646). Defendant did not timely oppose the motion. The undisputed facts set forth by plaintiff warrant the directing of judgment in plaintiff’s favor as a matter of law. Defendant’s counterclaim for plaintiff’s share of the costs, expenses, taxes and charges on the property is a proper subject matter for determination by Special Term and is not a defense to the plaintiff’s action. Gibbons, J. P., Thompson, Weinstein and Brown, J J., concur.