
    Hiram Garcia, Appellant, v Biro Manufacturing Company, Inc., Respondent. (And Third-Party and Fourth-Party Actions.)
    Decided September 18, 1984
    
      APPEARANCES OF COUNSEL
    
      Brian J. Shoot for appellant.
    
      Anthony J. McNulty and Donald F. Ayers for respondent.
   OPINION OF THE COURT

‘Memorandum.

The order of the Appellate Division should be reversed and the order of Special Term, which denied defendant’s motion for summary judgment with permission to renew, reinstated. Defendant’s contention that the machine had a safety guard when manufactured which was thereafter removed rests on the affidavit of its president, which states the model number and serial number of the machine on the basis of advice of defendant’s attorneys, without stating the basis of the attorneys’ information. Defendant has, therefore, failed to meet its burden of establishing its defense “sufficiently to warrant the court as a matter of law in directing judgment” in its favor (CPLR 3212, subd [b]).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and the order of Supreme Court, Bronx County, reinstated in a memorandum.  