Chrysler First Financial Services Corp. v. De Premis

replacement windows. According to De Premis, on that day she entered into what she believed to be a retail installment contract for the purchase and sale of 12 replacement windows at a total cost of $11,867. De Premis gave the sales representatives a down payment of $500 and she allegedly further understood that the remaining balance due on the account would be financed through Troy Savings Bank. De Premis maintains that she was provided with a copy of only one document, the retail installment contract, and that it was a complete surprise to her when she subsequently discovered that she had apparently at some point unknowingly executed a mortgage on her home to Oxford Credit Corporation in connection with the purchase of the replacement windows.^[1] This mortgage was recorded on June 21, 1989, as was the assignment of the mortgage to plaintiff. Thereafter, De Premis ceased paying for the windows, prompting plaintiff to commence this foreclosure action. Its motion for summary judgment having been denied, plaintiff appeals.

We affirm. Initially, we reject plaintiff’s contention that Supreme Court erred in finding De Premis’ papers sufficient to defeat the motion. On De Premis’ behalf, her attorney submitted his own affidavit, an unsworn affidavit from De Premis, an affidavit from De Premis’ guardian ad litem,^[2] and a sworn affidavit signed by De Premis that had been submitted as part of an earlier foreclosure action commenced by plaintiff but later dismissed. While plaintiff correctly argues that the opponent of a summary judgment motion must ordinarily produce evidentiary proof in admissible form (see, CPLR 3212 [b]) or suffer defeat, it is also true that this rule is somewhat flexible, to the extent that the opposing party "may be permitted to demonstrate acceptable excuse for his [or her] failure to meet the strict requirement of tender in admissible form” (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 , 1068). Here, we find no. reason to disturb Supreme Court’s determination that the affidavit from De Premis’ guardian ad litem provided a sufficient excuse for De Premis’ failure to sign her affidavit, especially since the facts relayed in the unsworn statement are virtually identical to the ones contained in De Premis’ prior sworn affidavit.