Feyh v. Brandtjen & Kluge, Inc.

283 A.D. 807, 129 N.Y.S.2d 502, 1954 N.Y. App. Div. LEXIS 5388

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1954
• Status: Published

Opinion

In an action to reform promissory notes and a chattel mortgage, defendant pleaded three affirmative defenses, and moved for summary judgment on the ground that such defenses were founded upon facts established prima facie by documentary proof or official record. Plaintiff cross-moved for summary judgment. Both motions were denied, and the parties appeal from those parts of the order which denied their respective motions. Order affirmed, without costs. An action for reformation is not one of the actions enumerated in subdivisions 1 to 9 of rule 113 of the Rules of Civil Practice, in which a plaintiff may move for summary judgment. Defendant is not entitled to summary judgment because it has failed to establish prima facie the defenses by “ documentary evidence or official record”, as required by the rule. Nolan, P. J., Adel, Wenzel, MacCrate and Murphy, JJ., concur.