Thorpe Electric Supply, Inc. v. Shannon — 124 A.D.2d 321

Majority

p. 321

Thorpe Electric Supply, Inc., Appellant, v Brian Shannon, Individually and Doing Business as Shannon Electric, Respondent.

— Main, J.

In this action to recover $11,063.24 allegedly owed to plaintiff by defendant for goods sold to defendant, we find that Special Term correctly denied plaintiff’s motion for summary judgment. As both parties have noted, summary judgment is a drastic remedy which should be granted only when there is no doubt as to the absence of a triable issue of fact (Phillips v Kantor & Co., 31 NY2d 307 , 311; Alfano v First Natl. Bank, 111 AD2d 960 , 962). While a question certainly has been raised as to defendant’s credibility, arising from certain statements made in his affidavit, we are nevertheless unwilling to say that defendant’s affidavits should be rejected outright or that as a matter of law his affidavits are inadequate to set up a triable issue of fact (see, Davis Acoustical Corp. v Matzen Constr., 57 AD2d 1018 , 1019; cf. 4 Weinstein-Korn-Miller, NY

p. 322

Civ Prac ¶ 3212.12). An examination of the record reveals that defendant may indeed have valid objections to at least some of the invoices attached as exhibits to plaintiffs affidavit. Given this, plaintiff is not entitled to summary judgment.

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

Cases cited

Phillips v. Joseph Kantor & Co. 31 NY2d 307 N.Y. 1972-11-03 at 311 p. 321
Alfano v. First National Bank 111 AD2d 960 N.Y. App. Div. 1985-06-06 at 962 p. 321