Frutos v. Shapiro

Appellate Division of the Supreme Court of New York

Frutos v. Shapiro

11 A.D.2d 1005, 206 N.Y.S.2d 18, 1960 N.Y. App. Div. LEXIS 7710

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

DecidedOctober 18, 1960

StatusPublished

This text of 11 A.D.2d 1005 (Frutos v. Shapiro) 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.

Bluebook

Frutos v. Shapiro, 11 A.D.2d 1005, 206 N.Y.S.2d 18, 1960 N.Y. App. Div. LEXIS 7710 (N.Y. Ct. App. 1960).

Pincite

Opinion

Order, entered May 18, 1960, granting plaintiff summary judgment in personal injury negligence action, unanimously affirmed, with $20 costs and disbursements to plaintiff-respondent. On this record the order was properly granted. It appears, however, from the briefs submitted on appeal, that defendants may be in a position to interpose issues of fact which would [1006]*1006require a trial. Consequently, in the interest of justice, defendants are entitled to move at Special Term to vacate the order granting the motion for summary judgment upon such terms and conditions as the court may require. It is only in the extraordinary ease, however, that such a failure to raise the issues of fact timely and properly should entitle a party to receive a further opportunity. Such circumstances are found to be present here, because of the possible presence of a substantial issue of contributory negligence, and defendants’ lack of familiarity with the facts of the accident, which unfortunately were not developed in the affidavits. Concur — • Botein, P. J., Breitel, Valente, McNally and Noonan, JJ.

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Order, entered May 18, 1960, granting plaintiff summary judgment in personal injury negligence action, unanimously affirmed, with $20 costs and disbursements to plaintiff-respondent. On this record the order was properly granted. It appears, however, from the briefs submitted on appeal, that defendants may be in a position to interpose issues of fact which would [1006]*1006require a trial. Consequently, in the interest of justice, defendants are entitled to move at Special Term to vacate the order granting the motion for summary judgment upon such terms and conditions as the court may require. It is only in the extraordinary ease, however, that such a failure to raise the issues of fact timely and properly should entitle a party to receive a further opportunity. Such circumstances are found to be present here, because of the possible presence of a substantial issue of contributory negligence, and defendants’ lack of familiarity with the facts of the accident, which unfortunately were not developed in the affidavits. Concur — • Botein, P. J., Breitel, Valente, McNally and Noonan, JJ.

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Bluebook (online)

11 A.D.2d 1005, 206 N.Y.S.2d 18, 1960 N.Y. App. Div. LEXIS 7710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frutos-v-shapiro-nyappdiv-1960.