DERONDE PRODUCTS INC v. STEVE GENERAL CONTRACTOR INC (2003)

Third-party defendant appeals from an order granting third-party plaintiff's motion for partial summary judgment.   In seeking partial summary judgment, third-party plaintiff contended that third-party defendant disputed only that it owes $13,582 of a total of $32,800 sought and thereby admitted that it owes the amount of $19,218.   We agree, and thus we conclude that Supreme Court properly granted partial summary judgment with respect to the amount of $19,218.   We further conclude, however, that the court erred in also awarding third-party plaintiff two back charges in the amounts of $3,120 and $3,862, respectively.   In support of its contention that it is entitled to those back charges, third-party plaintiff submitted only the affirmation of its attorney, who has no personal knowledge of the facts.   The attorney's affirmation therefore is without evidentiary value (see Wright v. Rite-Aid of NY, 249 A.D.2d 931, 672 N.Y.S.2d 548), and third-party plaintiff failed to meet its initial burden with respect to those back charges.   Consequently, we modify the order by vacating the award of those two back charges and the interest thereon.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by vacating the award of two back charges in the amounts of $3,120 and $3,862 and the interest thereon and as modified the order is affirmed without costs.

MEMORANDUM: