Gresham-Grenfell Corp. v. Campbell

65 A.D.2d 710, 410 N.Y.S.2d 531, 1978 N.Y. App. Div. LEXIS 13476

Opinion

Order, Appellate Term, entered March 6, 1978, affirming order of Civil Court, New York County, entered October 11, 1977, affirmed, without costs and without disbursements. The formal complaint directed by the Civil Court order denying summary judgment (CPLR 3213) shall be served within 20 days from the date of the order entered hereon, with issue to be joined by service of the answer within 10 days thereafter, reply if any to be served within five days thereafter. The foregoing is without prejudice to a new motion for summary judgment following joinder of issue. (See Circle Inds. Corp. v Krebs, 65 AD2d 709.) Concur—Kupferman, J. P., Birns, Markewich and Sandler, JJ.; Silverman, J., dissents in a memorandum as follows: I would reverse the order appealed from and grant plaintiffs motion for summary judgment. I think that the ordinary rules governing summary judgment apply to a motion for summary judgment under CPLR 3213. Defendant’s papers fail to meet the requirement of Di Sabato v Soffes (9 AD2d 297, 301.) "It is incumbent upon a defendant who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs, in order to show that the matters set up in his answer are real and are capable of being established upon a trial.”