Freeman v. Easy Glider Roller Rink, Inc.

Appellate Division of the Supreme Court of New York

Freeman v. Easy Glider Roller Rink, Inc.

114 A.D.2d 436, 494 N.Y.S.2d 351, 1985 N.Y. App. Div. LEXIS 53130

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 21, 1985

StatusPublished

Cited by6 cases

This text of 114 A.D.2d 436 (Freeman v. Easy Glider Roller Rink, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Freeman v. Easy Glider Roller Rink, Inc., 114 A.D.2d 436, 494 N.Y.S.2d 351, 1985 N.Y. App. Div. LEXIS 53130 (N.Y. Ct. App. 1985).

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Opinion

—In an action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Westchester County (Isseks, J.), dated February 24, 1984, which granted plaintiff’s motion for summary judgment.

Order reversed, with costs, and motion denied.

Plaintiff was not entitled to summary judgment. Her papers read in support of the motion failed to include a copy of the [437]*437pleadings as required by statute (see, CPLR 3212 [b]; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341). Moreover, notwithstanding the fact that defendants were precluded by prior court order from offering testimony at trial, the text of plaintiff’s own deposition, submitted in support of her motion, arguably raises an issue of fact as to liability and comparative negligence. It is long settled that the drastic remedy of summary judgment should not be granted where there is even arguably a genuine issue of fact (see, Capelin Assoc. v Globe Mfg. Corp., supra, at p 341; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Pontello v County of Onondaga, 94 AD2d 427, 432). We note parenthetically that were we not reversing, we would still have to modify and remit for an inquest of damages as nisi prius order failed to provide for the same. Mollen, P. J., Thompson, Bracken and O’Connor, JJ., concur.

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—In an action to recover damages for personal injuries, defendants appeal from an order of the Supreme Court, Westchester County (Isseks, J.), dated February 24, 1984, which granted plaintiff’s motion for summary judgment.

Order reversed, with costs, and motion denied.

Plaintiff was not entitled to summary judgment. Her papers read in support of the motion failed to include a copy of the [437]*437pleadings as required by statute (see, CPLR 3212 [b]; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341). Moreover, notwithstanding the fact that defendants were precluded by prior court order from offering testimony at trial, the text of plaintiff’s own deposition, submitted in support of her motion, arguably raises an issue of fact as to liability and comparative negligence. It is long settled that the drastic remedy of summary judgment should not be granted where there is even arguably a genuine issue of fact (see, Capelin Assoc. v Globe Mfg. Corp., supra, at p 341; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Pontello v County of Onondaga, 94 AD2d 427, 432). We note parenthetically that were we not reversing, we would still have to modify and remit for an inquest of damages as nisi prius order failed to provide for the same. Mollen, P. J., Thompson, Bracken and O’Connor, JJ., concur.

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Bluebook (online)

114 A.D.2d 436, 494 N.Y.S.2d 351, 1985 N.Y. App. Div. LEXIS 53130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freeman-v-easy-glider-roller-rink-inc-nyappdiv-1985.

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