GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965 (1985)

When faced with a properly supported motion for summary judgment, the opposing party must demonstrate a triable issue of fact with admissible evidence, and an attorney’s affidavit lacking personal knowledge is insufficient to defeat the motion.

Summary

GTF Marketing sued Colonial Aluminum Sales for breach of contract, alleging Colonial failed to pay for “leads” (names of potential customers). Colonial moved for summary judgment, arguing GTF hadn’t provided usable leads and further asserting collateral estoppel based on prior similar lawsuits. Colonial supported its motion with an affidavit from its president. GTF opposed with only an attorney’s affidavit. The Court of Appeals held that while collateral estoppel didn’t apply, GTF’s opposition was insufficient because it lacked admissible evidence from someone with personal knowledge of the facts, thus failing to demonstrate a triable issue.

Facts

GTF Marketing and Colonial Aluminum Sales entered into a contract where GTF would provide Colonial with names, addresses, and phone numbers of homeowners interested in aluminum siding for $10 per “lead.”
GTF claimed it supplied 12,463 leads but Colonial refused to pay $124,630.
Colonial moved for summary judgment, arguing GTF provided no usable leads and raised collateral estoppel.
Colonial’s president, Michael Longo, submitted an affidavit claiming the purported leads were useless, consisting of people who hadn’t sent in data cards, were promised free gifts, hung up, or lacked phone numbers.
GTF opposed with an affidavit from its attorney, asserting that a question of fact existed as to performance under the agreement.

Procedural History

Special Term denied Colonial’s motion for summary judgment.
The Appellate Division reversed, holding GTF was barred by third-party issue preclusion and that GTF’s papers were insufficient to raise a triable issue of fact.
GTF appealed to the New York Court of Appeals.

Issue(s)

Whether the doctrine of collateral estoppel (third-party issue preclusion) applies to bar GTF’s claim against Colonial.
Whether GTF’s affidavit submitted in opposition to Colonial’s motion for summary judgment was sufficient to demonstrate a triable issue of fact.

Holding

No, because it wasn’t clear that the trial court in the prior actions specifically and necessarily decided the issue of whether GTF fraudulently failed to send out data processing cards.
No, because the affidavit was from GTF’s attorney and lacked personal knowledge of the facts, which is insufficient to demonstrate a triable issue in response to a properly supported summary judgment motion.

Court’s Reasoning

Regarding collateral estoppel, the court noted that while the contracts in the prior actions were similar, it wasn’t clear the prior court necessarily decided the precise issue of whether GTF fraudulently failed to send out data processing cards. The court stated, “It is not clear from the decision, however, whether the trial court specifically and necessarily decided that issue, and third-party issue preclusion therefore does not lie”. The court also noted the prior decision was delivered orally, making it difficult to ascertain the dispositive issues.
Regarding the sufficiency of the opposing affidavit, the court emphasized that a party opposing summary judgment must demonstrate a factual issue requiring trial with admissible evidence. “[O]nce the moving party has satisfied this obligation, the burden shifts; ‘the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement’”. Since GTF’s attorney lacked personal knowledge, the affidavit had no evidentiary value. “[A]n affidavit or affirmation of an attorney without personal knowledge of the facts cannot ‘supply the evidentiary showing necessary to successfully resist the motion’”. Because Colonial presented evidence that GTF failed to provide usable leads, and GTF failed to counter with admissible evidence, summary judgment was appropriate. The uncontroverted fact was that GTF did not perform or provide Colonial with any “leads” under the agreement.