Rapant v. Camperlengo

Appeal (1) from an order of the Supreme Court at Special Term (Dier, J.), entered October 29, 1981 in Schenectady County, which granted plaintiff’s motion for summary judgment, and (2) from the judgment entered thereon. The underlying action is one to recover the sum of $10,000 for engineering and surveying services performed by plaintiff for defendant pursuant to an alleged agreement. Special Term granted summary judgment to plaintiff and defendant appeals. A fair reading of the record demonstrates that the parties entered into an agreement for the services, plaintiff performed them and defendant has failed to make any payment. Defendant contends it was error to grant summary judgment, alleging that the amount to be paid for the services was the reasonable value thereof and that payment was contingent on the sale of the subdivision lots for which plaintiff did the work. Defendant’s attorney, however, stated in a letter to plaintiff’s attorney that defendant was trying to raise money by the sale of certain property and further stated “The sum of $10,000 from the proceeds of this sale would be used to pay off Mr. Rapant.” Furthermore, defendant stated in his answer that “plaintiff and defendant’s agent did make an agreement whereby plaintiff would perform certain engineering and surveying services for defendant”. It is significant, however, that there is no affidavit by this agent stating the terms of the agreement. Defendant had the obligation to substantiate, in evidentiary form, his contrary version (Kramer v Harris, 9 AD2d 282). Considering the record in its entirety, we are of the view that Special Term properly granted summary judgment to plaintiff and the order and judgment should be affirmed. Order and judgment affirmed, with costs. Sweeney, J. P., Kane, Casey, Weiss and Levine, JJ., concur.