Fromer v. Seymour , 134 N.Y.S.2d 340 ( 1954 )

Appeal by defendant from an order of the Ulster County Court striking out his answer and granting summary judgment to plaintiff, and from the judgment entered thereon. Plaintiff seeks to recover the sum of $670.70, the alleged balance due for the sale of fuel oil by the plaintiff to defendant. The answer is essentially a denial. Upon this motion plaintiff’s affidavit is essentially a bill of particulars setting forth the dates and amounts of alleged deliveries, amounts of payments, and the alleged balance due. It is not supported by any signed delivery receipts or any additional proof or evidence of any nature. Defendant’s affidavit categorically denies the sales and deliveries, and any indebtedness to the plaintiff. Thus there was nothing before the court upon this motion “except the plaintiff’s naked assertion of her claim and the defendant’s naked denial thereof”. (Petras v.- Petras, 278 App. Div. 998.) An issue of fact is clearly presented, necessitating a trial. Order and judgment reversed and the matter remitted to the Ulster County Court for further proceedings, with costs to abide the event. Bergan, J. P., Coon, Halpern, Imrie and Zeller, JJ., concur.