SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
September 19, 1968
MARINE MIDLAND TRUST COMPANY OF NORTHERN NEW YORK, SUCCESSOR TO NORTHERN NEW YORK TRUST COMPANY, RESPONDENT,
CARMEN J. MACALUSO, AS ADMINISTRATOR C. T. A. OF THE ESTATE OF JOSEPH S. CHALK, DECEASED, APPELLANT
Appeal from judgment and order of Jefferson Special Term granting motion for summary judgment in an action on a promissory note.
Bastow, P. J., Williams, Marsh, Witmer and Henry, JJ.
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.)
Judgment and order unanimously reversed on the law and facts, with costs, and motion denied, without costs.
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