Foitl v. G.A.F. Corp.

New York Court of Appeals

Foitl v. G.A.F. Corp.

477 N.E.2d 618, 64 N.Y.2d 911, 488 N.Y.S.2d 377, 1985 N.Y. LEXIS 15744

CourtNew York Court of Appeals

DecidedMarch 19, 1985

StatusPublished

Cited by19 cases

This text of 477 N.E.2d 618 (Foitl v. G.A.F. Corp.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foitl v. G.A.F. Corp., 477 N.E.2d 618, 64 N.Y.2d 911, 488 N.Y.S.2d 377, 1985 N.Y. LEXIS 15744 (N.Y. 1985).

Pincite

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff does not argue before us that on the papers before the courts below summary judgment was improperly granted. Rather he contends that Special Term abused its discretion as a matter of law by refusing to consider an affidavit of plaintiff which was delivered to the Judge’s law secretary on the same day as, but several hours after, the motion was marked “submitted” on call of the calendar, because, it is argued, it had been inadvertently omitted from plaintiff’s papers. Defendant’s office did not receive a copy of the affidavit until the following day and, as plaintiff concedes, promptly objected to its being considered, while asking that, if the court decided to consider it, defendant be given the opportunity to reply.

[913]*913It is clear from the papers that the inadvertence involved was in failing to realize the necessity for an affidavit from the party, rather than the party’s attorney (see, Zuckerman v City of New York, 49 NY2d 557), not in failing to enclose with the submitted papers an affidavit previously prepared for that purpose. The affirmation of plaintiff’s attorney in opposition to defendant’s motion was dated some three weeks in advance of the return date and although it attached and referred to a number of other papers, contained no reference to an affidavit from plaintiff. The notice of plaintiff’s cross motion for summary judgment dated six days before the return date of defendant’s motion makes no reference to an affidavit from plaintiff. In light of those facts and the fact that defendant’s notice of motion, served over a month before the date on which the motion and cross motion were submitted, contained a CPLR 2214 (b) notice requiring service of answering papers at least five days prior to the return date, Special Term’s refusal to consider plaintiff’s affidavit involved no abuse of discretion.

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

Order affirmed, with costs, in a memorandum.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff does not argue before us that on the papers before the courts below summary judgment was improperly granted. Rather he contends that Special Term abused its discretion as a matter of law by refusing to consider an affidavit of plaintiff which was delivered to the Judge’s law secretary on the same day as, but several hours after, the motion was marked “submitted” on call of the calendar, because, it is argued, it had been inadvertently omitted from plaintiff’s papers. Defendant’s office did not receive a copy of the affidavit until the following day and, as plaintiff concedes, promptly objected to its being considered, while asking that, if the court decided to consider it, defendant be given the opportunity to reply.

[913]*913It is clear from the papers that the inadvertence involved was in failing to realize the necessity for an affidavit from the party, rather than the party’s attorney (see, Zuckerman v City of New York, 49 NY2d 557), not in failing to enclose with the submitted papers an affidavit previously prepared for that purpose. The affirmation of plaintiff’s attorney in opposition to defendant’s motion was dated some three weeks in advance of the return date and although it attached and referred to a number of other papers, contained no reference to an affidavit from plaintiff. The notice of plaintiff’s cross motion for summary judgment dated six days before the return date of defendant’s motion makes no reference to an affidavit from plaintiff. In light of those facts and the fact that defendant’s notice of motion, served over a month before the date on which the motion and cross motion were submitted, contained a CPLR 2214 (b) notice requiring service of answering papers at least five days prior to the return date, Special Term’s refusal to consider plaintiff’s affidavit involved no abuse of discretion.

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

Order affirmed, with costs, in a memorandum.

Cite This Page — Counsel Stack

Bluebook (online)

477 N.E.2d 618, 64 N.Y.2d 911, 488 N.Y.S.2d 377, 1985 N.Y. LEXIS 15744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foitl-v-gaf-corp-ny-1985.

Opinion

Related

Cite This Page — Counsel Stack