Majority
In an action by a public utility corporation, as a third-party beneficiary of a contract between defendant construction company and the Town of Ramapo, to recover for property damage, plaintiff appeals from an order of the Supreme Court, Rockland County, dated May 7, 1971, which denied its motion for partial summary judgment pursuant to CPLR 3212 (subd. [e]). Order affirmed, without costs. Upon the argument of this appeal plaintiff (through counsel) stated that it waived any claim to partial summary judgment by reason of the fact that defendant’s opposing affidavits were made by persons not having personal knowledge of the facts and that for the purpose of passing upon the propriety of the order appealed from the statement of facts contained in said affidavits were to be deemed made upon personal knowledge. In view of that concession we hold that triable issues of fact are presented which require a plenary trial. Latham, Acting P. J., Shapiro, Gulotta, Brennan and Benjamin, JJ., concur.