Opinion
April 24, 1969
Appeal from an order of the County Court of Saratoga County which denied plaintiff's motion for summary judgment and granted defendant's motion for leave to file an amended answer. The affidavit of respondent's attorney is inadequate to support a motion for leave to file an amended answer. While leave to amend is to be freely given, upon such terms as may be just (CPLR 3025, subd. [b]), the affidavit accompanying the notice of motion should be the affidavit of the party himself. The attorney's affidavit cannot be accepted in lieu of the affidavit of the party, unless the facts upon which the motion is based are peculiarly within the knowledge of the attorney. In the case at bar the facts are within the knowledge of respondent. In the interests of justice, respondent should be afforded an opportunity to submit such affidavit. Since appellant's motion for summary judgment may be dependent upon the respondent's motion to amend his answer, appellant should also have an opportunity to renew its motion for summary judgment. Order modified, on the law and the facts, so as to deny respondent's motion for leave to file an amended answer without prejudice to renewal thereof and without prejudice to renewal by appellant of its motion for summary judgment, and, as so modified, affirmed, with costs to appellant. Gibson, P.J., Herlihy, Reynolds, Aulisi and Greenblott, JJ., concur in memorandum by Greenblott J.