Opinion
March 12, 1962
In an action by vendees of a wholesale beer distribution business against their vendor for damages for alleged fraudulent representations as to the amount of the prior gross sales of the business, the plaintiffs appeal: (1) from an order of the Supreme Court, Westchester County, dated September 20, 1961, and entered in Orange County on September 26, 1961, which granted defendant's motion for summary judgment dismissing the complaint, pursuant to rule 113 of the Rules of Civil Practice; and (2) from a judgment of the Supreme Court, Orange County, dated and entered September 27, 1961, upon said order, in favor of defendant. Order and judgment reversed, with $10 costs and disbursements, and motion denied. In our opinion, the record shows the existence of triable issues of fact. In any event, the material facts as to the total amount of the gross sales within the period or periods of time in question are clearly not within plaintiffs' personal knowledge and apparently are exclusively within defendant's knowledge. For that reason alone summary judgment should not have been granted ( Moller v. Candlewood Constr. Corp., 12 A.D.2d 959; Hogan v. Ciancimino 12 A.D.2d 501; Vignola v. Britts, 11 A.D.2d 801; Ardisco, Ltd. v. Taconic Holding Corp., 10 A.D.2d 973; De France v. Oestrike, 8 A.D.2d 735). We also believe that under all the circumstances disclosed, the plaintiffs ought to be allowed an opportunity to develop the facts through an examination before trial before summary judgment is granted against them (see Lori-Jay Knitting Mills v. Columbia Knitting Mills, 21 Misc.2d 537; Bartels v. Rubel Corp., 205 Misc. 673). Ughetta, Acting P.J., Christ, Brennan, Hill and Rabin, JJ., concur.