Opinion
March 22, 1954.
In an action to recover damages for personal injuries, defendant moved for summary judgment on the ground that the defense pleaded in its amended answer was established by documentary evidence and official records. None of the documents, except a copy of a lease, was served on plaintiff, but plaintiff's attorney was notified that the documents would be available for inspection at the office of defendant's attorney. Defendant appeals from the order denying the motion, which was denied on the ground that the burden should not be cast upon the adverse party to seek out the documents which are a necessary part of the moving papers. Order affirmed, with $10 costs and disbursements. In addition to the ground upon which the motion was denied, examination of the purported exhibits presented with this appeal, together with consideration of the affidavits in support of the motion, shows that the proof relied on is insufficient to warrant the granting of summary judgment. Nolan, P.J., MacCrate, Schmidt, Beldock and Murphy, JJ., concur.