Section 4

Citation: Section 4
Parent Document: Solomon v. Birger, 477 N.E.2d 137 (1985)
Jurisdiction: Massachusetts (state)
Effective Date: 1985-04-22
Original Source: https://www.courtlistener.com/opinion/2048661/solomon-v-birger/ ↗

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Viewing the allegations in the complaint in conjunction with the express warranty language in § 9 of the purchase and sale agreement it becomes clear that the defendants were not entitled to summary judgment as matter of law.5 The verified complaint *647alleged that during the negotiation process and at the time of the acquisition of the premises the defendants made “express and implied warranties” to the effect that the house on the premises “was safe and fit for habitation and was free of major latent structural defects.” Section 9 of the agreement would qualify as an express warranty made at the time of the acquisition of the property or during the period of negotiation. As the defendants’ motion for summary judgment was not supported by affidavits, the requirements of Mass.R.Civ.P. 56(e), 365 Mass. 825 (1974), do not come into play and the plaintiffs’ verified complaint can stand against the other documents filed in support of the motion. See Enterprise Music & Games, Inc. v. McCarthy, 9 Mass. App. Ct. 906 (1980).

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