The opinion of the court was delivered by: FOGEL
Plaintiff has moved for summary judgment as to Counts II and IV of the complaint. After consideration of plaintiff's motion, defendants' response thereto, defendants' motion to strike the affidavit of Louis Paul, and the respective briefs, the motion as to Count II will be denied and the motion as to Count IV will be granted.
I. MOTION TO STRIKE THE AFFIDAVIT OF LOUIS PAUL
Office Outfitters, Inc. and Arnold Kamens (Office Outfitters), challenge the affidavit of Louis Paul, which is attached to plaintiff's motion, on the grounds that it does not comply with Rule 56(e) of the Federal Rules of Civil Procedure. Rule 56(e) states in pertinent part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.
Defendants allege in their motion that the Paul affidavit "does not set forth facts with specific particularity to permit same to be admissible into evidence, and said affidavit is not made upon personal knowledge."
A review of the affidavit, dated February 2, 1978, and the supplemental affidavit, dated February 20, 1978, and attached to plaintiff's reply brief, reveals the allegations that Paul is and has been Treasurer of Kimberton Country, Ltd. (Kimberton), since 1974. He states that he has personal knowledge of the matters to which he attests.
The affidavit of Leonard Zack, Esquire, counsel for defendants, alleges that Paul began working with Kimberton on May, 1, 1974. Zack further states that "Paul's knowledge of the lease agreement [April 15, 1974] was acquired from discussions with other officers of Kimberton and the documents involved in the transaction that are in the possession of Kimberton."
Zack challenges Paul's affidavit because the lease agreement between Kimberton and Creative Hotel Management, Ltd. (Creative), was executed on April 15, 1974, just prior to Paul's employment with Kimberton.
Paul admits in his supplemental affidavit that he does not have firsthand knowledge of the April 15, 1974 lease and attached inventory. Paul verified that the lease was a true and correct copy by acknowledging the signature of Roger Altemose. Paul also claims that the inventory attached to the lease is a business record created in the ordinary course of business.
Engl v. Aetna Life Ins. Co., 139 F.2d 469, 473 (2d Cir. 1943), holds that
. . . mere formal denials or general allegations which do not show the facts in detail and with precision are insufficient to prevent the award of summary judgment.
We refuse to strike either affidavit. The competent portions meet the standards of Rule 56(e) and will be considered, just as they would at trial. Dickheiser v. Penn. R. Co., 5 F.R.D. 5, 9 ...