The order of the Appellate Division should be affirmed, with costs.
By letter agreement dated March 5, 1981 plaintiff (GTF Marketing) agreed to supply defendant (Colonial Aluminum Sales) with the names, addresses and telephone numbers of homeowners in Queens, Nassau and Suffolk Counties interested in Colonial's aluminum siding at a cost of $10 per "lead." According to the agreement, GTF would mail out about 200,000 data processing cards containing "screening questions" asking the recipients whether they were planning to buy aluminum siding and other products within six months. In its verified complaint, GTF alleged that it had supplied 12,463 "leads," and that Colonial had refused to pay the sum of $124,630 which was owing to GTF.
After joinder of issue, Colonial moved for summary judgment,
Although the contracts in the prior actions and in this one are different, Colonial argues that the performance was the same, and that the trial judge necessarily found that GTF had fraudulently failed to send out any data processing cards. 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 (see, O'Connor v G & R Packing Co., 53 N.Y.2d 278). Because the decision was delivered orally immediately following trial, it contains a number of observations, none of which can be said with certainty to be dispositive of the issue before us. It would have been highly desirable for the trial court to have issued an opinion containing findings, particularly since the court knew at the time of its decision that this action was pending.
The opposing affidavit was, however, insufficient. A defendant moving for summary judgment has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit (CPLR 3212 [b]; Zuckerman v City of New York, 49 N.Y.2d 557, 562).
Here, Colonial satisfied its burden. Longo's affidavit stated that, although GTF had provided names of homeowners to Colonial, Longo personally and Colonial in the ordinary course of its business determined that the names were useless and not "leads." Some had never sent in data processing cards; others said they had been promised free gifts; many hung up, and others could not be called because GTF had not supplied telephone numbers. Longo concluded that he "could not make any use of the purported `leads' supplied to us by GTF. They were just names, and definitely were not `leads.'"
In the face of Longo's affidavit and allegations that GTF failed to perform, the affidavit of GTF's counsel submitted in opposition was insufficient. The allegation that a question of fact exists as to performance under the agreement is plainly not made upon personal knowledge. As we have previously noted, an affidavit or affirmation of an attorney without personal knowledge of the facts cannot "supply the evidentiary showing necessary to successfully resist the motion" (Roche v Hearst Corp., 53 N.Y.2d 767, 769). "Such an affirmation by counsel is without evidentiary value and thus unavailing" (Zuckerman v City of New York, 49 N.Y.2d 557, 563, supra). Thus, on the papers submitted the uncontroverted fact is that GTF did not perform or provide Colonial with any "leads" under the agreement, and GTF's claim that Colonial breached the agreement by failing to pay for the services rendered should therefore be dismissed.
Order affirmed, with costs, in a memorandum.