Washington Fillmore Iron Works Inc. v. Klemp Corp. 29 A.D.2d 836

Order unanimously reversed, with costs and motion denied. Memorandum: In treating this motion to dismiss as a motion for summary judgment, as required by CPLR 3211 (subd. [c]) we conclude that the affidavit by defendant’s attorney Pearlman, which provided the only basis for the court’s determination as to what part of the obligations sued on had been discharged by the article XI arrangement and what obligation arose after the arrangement, is without probative value. It does not appear that the affiant had personal knowledge of the date when the obligations alleged to have been discharged were incurred. (Fauci v. Milano, 15 A D 2d 939, affid. 12 N Y 2d 926; Cohen v. Pannia, 7 A D 2d 886.) (Appeal from order of Erie Special Term granting motion to partially dismiss complaint.) Present — Bastow, J. P., Del Veechio, Marsh, Witmer and Henry, JJ.