State v. Herschowsky

The order should be affirmed. We agree with Special Term that the records submitted by the State are not sufficiently free from ambiguity to justify an award of summary judgment for the amount claimed to be due by the State on certain lottery ticket consignment transactions. Indeed, the need to include supplemental explanations upon both the motion for reargument and this appeal to explain inconsistencies, ambiguities and gaps in the State’s records establishes that those records are not of the type and quality necessary to support a summary judgment motion. The State’s claim that defendant Norman Herschowsky failed to maintain records of the various transactions at issue does not alter the State’s burden, as plaintiff, of establishing its entitlement to the amount sought to be recovered in the action.

Order affirmed, without costs. Mahoney, P. J., Main, Casey, Mikoll and Harvey, JJ., concur.