Gjertsen v. Stracke , 1960 N.Y. Misc. LEXIS 1945 ( 1960 )

Mabio Pittohi, J.

Defendant Stracke’s motion for summary judgment dismissing the complaint is denied.

The only supporting affidavit is by the defendant’s attorney. Subdivision 2 of rule 113 of the Buies of Civil Practice requires the affidavit to be ‘1 by a person having knowledge of the facts; it must recite all the material facts; and it must show * * * that the action * * * has no merit ’ ’. This affidavit has failed in all three of these respects, especially in its failure to be by a person with knowledge, not hearsay. An affidavit by an attorney without personal knowledge is hearsay and is not sufficient (Favole v. Gallo, 263 App. Div. 729 [2d Dept], affd. 289 N. Y. 696; see Di Sabato v. Soffes, 9 A D 2d 297, 300, 301 [1st Dept.]).

Be that as it may, there is an issue of fact as to whether the Stracke car stopped short, thus contributing to the accident.