De Fonce Construction Co. v. Complete Machinery & Equipment Co.

In order for a court conclusively to decide whether instant items of claim were fully determined and adjudicated in a prior litigation, it is necessary that the party, moving for summary judgment on such ground, marshal all available evidence and proof bearing upon such issue (Rudd v. Cornell, 171 N. Y. 114,127-129). . The moving.defendant herein submitted on the motion neither the pleadings, the trial record, nor transcripts of pretrial examinations of the previous suit, although all were readily accessible. Brief excerpts allegedly taken from such documents and included in an affidavit, even if uncontradicted, cannot suffice and may not be substituted for full and complete documentary evidence. Any uncertainty as to what is contained in these documents precludes a final determination on a motion for summary judgment. A trial must be had on the issue as to whether the subject matter of this litigation was or should have been resolved in the prior case (Bell v. Merrifield, 109 N. Y. 202, 211).

The judgment and order should.be reversed, with $10 costs, and motion denied.

Concur — Hecht, J. P., Gold and Capozzoli, JJ.

Judgment reversed, etc.