Wells Fargo Bank International v. Binabdulaziz

97 A.D.2d 945, 468 N.Y.S.2d 1010, 1983 N.Y. App. Div. LEXIS 20747

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 1983
• Status: Published

Opinion

Order reversed, without costs, all concur, O’Donnell, J., not participating, and matter remitted to Supreme Court, Onondaga County, for further proceedings, in accordance with the following memorandum: The record on appeal contains a transcript of a deposition which was not before Special Term but which contains evidence that is both relevant and important to a determination of petitioner’s motion to vacate the order of attachment. Although the parties have stipulated to the correctness of the record pursuant to CPLR 5532, we have decided, in the exercise of discretion, not to consider this evidence. Nevertheless, in the interest of justice, plaintiff should be afforded an opportunity to present such proof in opposition to the motion (Murrer v Stoltz, 23 AD2d 810). (Appeal from order of Supreme Court, Onondaga County, Lynch, J. — vacate attachment.) Present — Dillon, P. J., Doerr, Denman, O’Donnell and Schnepp, JJ.