Ramage v. Feore

In an action to recover damages for the breach of a contract to purchase real property, the defendant seller appeals from a judgment of the Supreme Court, Suffolk County (McCarthy, J.), entered March 24, 1989, which, upon *287an order of the same court entered February 28, 1984, granting the plaintiffs’ motion for summary judgment, is in favor of the plaintiffs and against him in the principal sum of $33,925. The defendant’s notice of appeal from the order entered February 28, 1989, is deemed a premature notice of appeal from the judgment (CPLR 5520 [c]).

Ordered that the judgment is affirmed, with costs.

Although a motion for summary judgment may be denied upon a showing by the opposing party that evidence needed to oppose the motion is exclusively in possession of the movant (see, CPLR 3212 [f]), such a showing must be based upon something more than suspicion or speculation (see, Denkensohn v Davenport, 130 AD2d 860). The opposition submitted by the defendant, consisting only of his attorney’s affirmation, represents merely that which he suspects he might find if permitted to complete discovery, without any concomitant evidentiary support for that suspicion. The plaintiffs established their entitlement to judgment in their favor, and therefore the court properly granted their motion for summary judgment. Brown, J. P., Lawrence, Hooper and O’Brien, JJ., concur.