Gresham-Grenfell Corp. v. Campbell

Full title: GRESHAM-GRENFELL CORP., Appellant, v. LAWRENCE R. CAMPBELL, Respondent

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 14, 1978

65 A.D.2d 710 (N.Y. App. Div. 1978)

Opinion

November 14, 1978

Order, Appellate Term, entered March 6, 1978, affirming order of Civil Court, New York County, entered October 11, 1977, affirmed, without costs and without disbursements. The formal complaint directed by the Civil Court order denying summary judgment (CPLR 3213) shall be served within 20 days from the date of the order entered hereon, with issue to be joined by service of the answer within 10 days thereafter, reply if any to be served within five days thereafter. The foregoing is without prejudice to a new motion for summary judgment following joinder of issue. (See Circle Inds. Corp. v Krebs, 65 A.D.2d 709.)

Concur — Kupferman, J.P., Birns, Markewich and Sandler, JJ.; Silverman, J., dissents in a memorandum as follows:

I would reverse the order appealed from and grant plaintiff's motion for summary judgment. I think that the ordinary rules governing summary judgment apply to a motion for summary judgment under CPLR 3213. Defendant's papers fail to meet the requirement of Di Sabato v Soffes ( 9 A.D.2d 297, 301.) "It is incumbent upon a defendant who opposes a motion for summary judgment to assemble, lay bare and reveal his proofs, in order to show that the matters set up in his answer are real and are capable of being established upon a trial."