Raybin v. Raybin

In our opinion, the record discloses triable issues of fact which should await a trial. Evidence which might be excluded on a trial pursuant to section 347 of the Civil Practice Act, while not to be used as the basis for granting summary judgment in favor of the party who offers such evidence (Ditkoff v. Prudential Sav. Bank, 245 App. Div. 748), may nevertheless be considered in ascertaining whether a triable issue exists and may be utilized as the basis for denying summary judgment to such party (Bourgeois v. Celentano, 10 A D 2d 824 [1st Dept. 1960]). Moreover, the affidavit of defendant’s father-in-law should have been considered *680although the answer does not contain an affirmative defense of a forgiveness of the indebtedness (Curry v. Mackenzie, 239 N. Y. 267, 272). Beldock, P. J., Christ, Hill, Rabin and Hopkins, JJ., concur.