O'NEAL v. Brady , 10 Fla. L. Weekly 2316 ( 1985 )

476 So. 2d 294 (1985)

Gilbert O'NEAL, Appellant,
v.
William BRADY, Appellee.

No. 85-213.

District Court of Appeal of Florida, Third District.

October 8, 1985.

Anthony J. Scremin and Gregory McGibney, Miami, for appellant.

Hershoff & Levy and Jay Levy, Miami, for appellee.

Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.

PER CURIAM.

In order for a plaintiff to obtain a summary judgment where the defendant asserts affirmative defenses, the plaintiff must either disprove those defenses by evidence or establish their legal insufficiency. Howdeshell v. First National Bank of Clearwater, 369 So. 2d 432 (Fla. 2d DCA 1979). Because plaintiff failed to conclusively refute the factual allegations or to establish the legal insufficiency of the affirmative defenses, the entry of a summary judgment was error.

Reversed and remanded for further proceedings.