Walter v. Saxe

Appellate Division of the Supreme Court of New York

Walter v. Saxe

145 A.D.2d 949, 538 N.Y.S.2d 710, 1988 N.Y. App. Div. LEXIS 13999

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

DecidedDecember 23, 1988

StatusPublished

This text of 145 A.D.2d 949 (Walter v. Saxe) 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

Walter v. Saxe, 145 A.D.2d 949, 538 N.Y.S.2d 710, 1988 N.Y. App. Div. LEXIS 13999 (N.Y. Ct. App. 1988).

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Opinion

— Order unanimously reversed on the law without costs, motion denied and matter remitted to Onondaga County Family Court for further proceedings before a different Judge, in accordance with the following memorandum: It was error for the court to dismiss the petition without a hearing in this filiation proceeding. It was further error to treat respondents’ motion to dismiss the petition as one for summary judgment because the parties were not given the opportunity to "submit any evidence that could properly be considered on a motion for summary judgment” (CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506; Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs., 63 NY2d 100, 103) and because the motion to dismiss was supported only by the affirmation of an attorney who lacked personal knowledge of the facts (Harlem Sav. Bank v Independent Leasing Corp., 114 AD2d 314). (Appeal from order of Onondaga County Family Court, Buck, J. — paternity.) Present — Doerr, J. P., Denman, Boomer, Pine and Davis, JJ.

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— Order unanimously reversed on the law without costs, motion denied and matter remitted to Onondaga County Family Court for further proceedings before a different Judge, in accordance with the following memorandum: It was error for the court to dismiss the petition without a hearing in this filiation proceeding. It was further error to treat respondents’ motion to dismiss the petition as one for summary judgment because the parties were not given the opportunity to "submit any evidence that could properly be considered on a motion for summary judgment” (CPLR 3211 [c]; Mihlovan v Grozavu, 72 NY2d 506; Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs., 63 NY2d 100, 103) and because the motion to dismiss was supported only by the affirmation of an attorney who lacked personal knowledge of the facts (Harlem Sav. Bank v Independent Leasing Corp., 114 AD2d 314). (Appeal from order of Onondaga County Family Court, Buck, J. — paternity.) Present — Doerr, J. P., Denman, Boomer, Pine and Davis, JJ.

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Bluebook (online)

145 A.D.2d 949, 538 N.Y.S.2d 710, 1988 N.Y. App. Div. LEXIS 13999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walter-v-saxe-nyappdiv-1988.

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