Marine Midland Trust Co. v. Macaluso

Judgment and order unanimously reversed on the law and facts, with costs, and motion denied, without costs. Memorandum: Summary judgment should not have been granted because the facts upon which the motion was predicated are not within the knowledge of the defendant but are exclusively within the knowledge of the plaintiff. “ Summary judgment is not justified where there are likely to be defenses that depend upon knowledge in the possession of the party moving for judgment, which might be disclosed by cross-examination or examination before trial.” (Procter & Gamble Distr. Co. v. Lawrence Amer. Field Warehousing Corp., 16 N Y 2d 344, 362; Crocker-Citizens Nat. Bank v. L. N. Magazine Distributors, 26 A D 2d 667.) (Appeal from judgment and order of Jefferson Special Term granting motion for summary judgment in an action on a promissory note.) Present—Bastow, P. J., Williams, Marsh, Witmer and Henry, JJ.