Affidavits may not be added by either party as a matter of right after a hearing and decision on a motion for summary judgment, but rather the allowance of affidavits presented for the first time in connection with a motion to vacate is within the discretion of the trial court. Kaplan v. Disera , 199 Ill. App. 3d 1093, 557 N.E.2d 924, 145 Ill. Dec. 945 (1990). Indiana
Consequently, her "affidavit" is merely an unsworn statement and the circuit court should not have relied on it in granting summary judgment. Essig, 2015 IL App (4th) 140546, ¶ 43; Manuel, 60 Ill. App. 3d at 657; Northrop, 242 Ill. App. 3d at 7; see also Cole Taylor Bank v. Corrigan, 230 Ill. App. 3d 122, 130 (1992) (citing Kaplan v. Disera, 199 Ill. App. 3d 1093, 1096 (1990) ("Evidence which would be inadmissible at trial may not be considered in support of *** a motion for summary judgment."). Because Mills' statement was inadmissible, the documents attached in support of it were likewise inadmissible.
American Eagle asserts a Third Amendment never existed and that what Card and Party purports to be the Third Amendment is bogus. ¶ 23 Card and Party argues the trial court erred when it refused to consider as the extant lease Card and Party's alleged Third Amendment, which was attached to Schwartz's affidavit in response to American Eagle's motion for summary judgment. Card and Party contends the Third Amendment raised a factual issue, namely, which lease controlled and, therefore, whether American Eagle could seek use and occupancy. ¶ 24 The purpose of a summary judgment proceeding is to determine whether there is competent evidence showing a genuine issue of material fact. Card and Party is correct that at the summary judgment stage, the court may not make credibility determinations (Nosal, 279 Ill. App. 3d at 236); however, evidence that would not be admissible at trial may not be considered in support or opposition of a motion for summary judgment (Kaplan v. Disera, 199 Ill. App. 3d 1093, 1096 (1990)). Accordingly, it is necessary for the trial court to consider and decide whether the affidavits and other supporting documentation would in fact be admissible evidentiary material at a trial on the merits; if not, the material should be excluded from consideration in connection with the summary judgment.
"Although the court at the summary judgment stage does not try the issues, evidence that would be inadmissible at trial may not be considered in support of or in opposition to a motion for summary judgment. Kaplan v. Disera, 199 Ill. App. 3d 1093, 1096, 557 N.E.2d 924 (1991). Accordingly, the trial court must consider and decide whether the affidavits and attachments that purport to create a genuine issue of material fact would be admissible evidentiary matter at a trial on the merits.
Although the court at the summary judgment stage does not try the issues, evidence that would be inadmissible at trial may not be considered in support of or in opposition to a motion for summary judgment. Kaplan v. Disera, 199 Ill. App.3d 1093, 557 N.E.2d 924 (1991). Accordingly, the trial court must consider and decide whether the affidavits and attachments which purport to create a genuine issue of material fact would be admissible evidentiary matter at a trial on the merits.
Here, while Thompson's complaint alleged lack of knowledge, its complaint contained no allegations to even raise the possibility of a challenge to the averments of constructive notice raised by Hinsdale. Additionally, Coveny's averment as to Timothy Thompson's lack of knowledge of the proposed zoning changes prior to the enactment of the April 25, 1989, ordinance would be inadmissible at trial (see generally R. Hunter, Trial Handbook for Illinois Lawyers — Civil § 26.10, at 307-08 (6th ed. 1989)) and thus improper for consideration at summary judgment (see Kaplan v. Disera (1990), 199 Ill. App.3d 1093, 1096). Any expenditures incurred, including the irrevocable letter of credit, were made with notice of potential zoning changes.
Caliendo cites no authority in support of his "reversible error contention," and, indeed, the law is contrary to his contention. It is precisely the purpose of summary judgment proceedings to determine whether there is competent evidence showing a genuine issue of material fact. Although the court at the summary judgment stage does not try the issues ( Siegel v. Levy Organization Development Co. (1991), 219 Ill. App.3d 579; Patch v. Township of Persifer (1991), 214 Ill. App.3d 108), evidence that would be inadmissible at trial may not be considered in support of or in opposition to a motion for summary judgment. ( Kaplan v. Disera (1990), 199 Ill. App.3d 1093; Luthy v. Keehner (1980), 90 Ill. App.3d 127.) Necessarily, the trial court must consider and decide whether the affidavits and attachments which purport to create a genuine issue of material fact would be admissible evidentiary matter at a trial on the merits. • 4 Caliendo does not state in his affidavit any facts from which it may be concluded that, in fact, there was a modification of the $175,000 working capital loan note such as would have extended the due date.
Since the affidavit was inadmissible, the trial court erred by relying upon it in granting summary judgment. Kaplan v. Disera (1990), 199 Ill. App.3d 1093, 1096. SUMMARY JUDGMENT