New York Court of Appeals, 1985

Foitl v. G.A.F. Corp.

New York Court of Appeals · Decided March 19, 1985

64 N.Y.2d 911; 477 N.E.2d 618; 488 N.Y.S.2d 377; 1985 N.Y. LEXIS 15744

Cases that cite this one

19 later published cases cite this decision.

Matter of Free Mkt. Envtl. Law Clinic v. Attorney Gen. of N.Y. (Appellate Division of the Supreme Court of New York 2018)
Zaharatos v. Zaharatos (Appellate Division of the Supreme Court of New York 2015)
Lin v. City of New York (Appellate Division of the Supreme Court of New York 2014)
Lin v. City of New York (Appellate Division of the Supreme Court of New York 2014)
PAYNE, DEREK v. BUFFALO GENERAL HOSPITAL (Appellate Division of the Supreme Court of New York 2012)
Payne v. Buffalo General Hospital (Appellate Division of the Supreme Court of New York 2012)
Payne v. Buffalo General Hospital (Appellate Division of the Supreme Court of New York 2012)
Tran Han Ho v. Brackley (Appellate Division of the Supreme Court of New York 2010)
Mallards Dairy, LLC v. E&M Engineers & Surveyors, P.C. (Appellate Division of the Supreme Court of New York 2010)
Courtney v. Port Authority of New York & New Jersey (Appellate Division of the Supreme Court of New York 2006)
Moore v. Long Island College Hospital (Appellate Division of the Supreme Court of New York 2000)
Rodriguez v. Tiwari (Appellate Division of the Supreme Court of New York 1999)
Leasing v. Barlow (Appellate Division of the Supreme Court of New York 1992)
Save The Pine Bush, Inc. v. Common Council (Appellate Division of the Supreme Court of New York 1992)
Romeo v. Ben-Soph Food Corp. (Appellate Division of the Supreme Court of New York 1989)
Bijou v. Lechtenberg (Appellate Division of the Supreme Court of New York 1989)
Rivers v. Butterhill Realty (Appellate Division of the Supreme Court of New York 1988)
Klapper v. Eilberg (Appellate Division of the Supreme Court of New York 1987)
Ellis v. Urs (Appellate Division of the Supreme Court of New York 1986)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff does not argue before us that on the papers before the courts below summary judgment was improperly granted. Rather he contends that Special Term abused its discretion as a matter of law by refusing to consider an affidavit of plaintiff which was delivered to the Judge’s law secretary on the same day as, but several hours after, the motion was marked “submitted” on call of the calendar, because, it is argued, it had been inadvertently omitted from plaintiff’s papers. Defendant’s office did not receive a copy of the affidavit until the following day and, as plaintiff concedes, promptly objected to its being considered, while asking that, if the court decided to consider it, defendant be given the opportunity to reply.

*913It is clear from the papers that the inadvertence involved was in failing to realize the necessity for an affidavit from the party, rather than the party’s attorney (see, Zuckerman v City of New York, 49 NY2d 557), not in failing to enclose with the submitted papers an affidavit previously prepared for that purpose. The affirmation of plaintiff’s attorney in opposition to defendant’s motion was dated some three weeks in advance of the return date and although it attached and referred to a number of other papers, contained no reference to an affidavit from plaintiff. The notice of plaintiff’s cross motion for summary judgment dated six days before the return date of defendant’s motion makes no reference to an affidavit from plaintiff. In light of those facts and the fact that defendant’s notice of motion, served over a month before the date on which the motion and cross motion were submitted, contained a CPLR 2214 (b) notice requiring service of answering papers at least five days prior to the return date, Special Term’s refusal to consider plaintiff’s affidavit involved no abuse of discretion.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed, with costs, in a memorandum.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.