Bigaj v. Gehl

Appellate Division of the Supreme Court of New York

Bigaj v. Gehl

154 A.D.2d 893

Appellate Division of the Supreme Court of the State of New York·Decided October 6, 1989·Published·Cited by 1 cases

Opinion

Order unanimously affirmed with costs. Memorandum: We agree with Supreme Court that defendants did not abandon their counterclaim; thus, the protective order was properly denied. Plaintiffs motion for summary judgment dismissing the counterclaim was properly denied because it was untimely made. The motion was made on only two days’ notice and defendant did not have an adequate opportunity to submit answering affidavits (see, Burstin v Public Serv. Mut. Ins. Co., 98 AD2d 928; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2214:12). (Appeal from order of Supreme Court, Erie County, Forma, J. — discovery; summary judgment.) Present — Dillon, P. J., Denman, Boomer, Green and Davis, JJ.

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Order unanimously affirmed with costs. Memorandum: We agree with Supreme Court that defendants did not abandon their counterclaim; thus, the protective order was properly denied. Plaintiffs motion for summary judgment dismissing the counterclaim was properly denied because it was untimely made. The motion was made on only two days’ notice and defendant did not have an adequate opportunity to submit answering affidavits (see, Burstin v Public Serv. Mut. Ins. Co., 98 AD2d 928; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2214:12). (Appeal from order of Supreme Court, Erie County, Forma, J. — discovery; summary judgment.) Present — Dillon, P. J., Denman, Boomer, Green and Davis, JJ.

Bigaj v. Gehl, 154 A.D.2d 893 (N.Y. Ct. App. 1989).

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