Rogers v. U-Haul Co.

41 A.D.2d 835, 341 N.Y.S.2d 1021, 1973 N.Y. App. Div. LEXIS 4824

Opinion

Motion by respondent to dismiss appeal from an order of the Supreme Court, Kings County, dated March 7, 1972, on the ground that the filed record on appeal includes an affidavit which was not considered by Special Term. The order, made on a rehearing of appellant’s motion for summary judgment, adhered to the original determination, embodied in an order dated November 1, 1971, denying the motion for summary judgment. Motion to dismiss appeal denied, in the exercise of discretion, since the inclusion of the affidavit in question was not prejudicial, its content having in material substance appeared in another affidavit which was considered by Special Term on the motion for summary judgment which was decided by the order dated November 1, 1971. Munder, Acting P. J., Martuseello, Gulotta, Christ and Benjamin, JJ., concur.