Allied Discount Co. v. Bonded Auto Sales, Inc.

The order granting summary judgment and judgment entered thereon should be unanimously reversed upon the law, with $30 costs to defendant, and motion for summary judgment denied, with $10 costs. In its opposing affidavit, defendant, through its president, showed the existence of a valid counterclaim in an amount exceeding plaintiff’s claim. That the counterclaim was not pleaded is of no moment. The affidavit, not the pleading, was controlling on the motion for summary judgment. (Cf. Hellmuth v. Brandin, 3 A D 2d 997; see Shientag, Summary Judgment, pp. 65-66.)

Concur — Pette, Hart and Di Gtovanna, JJ.

Order reversed, etc.