Opinion
January 21, 1971
Order, Supreme Court, New York County, entered September 29, 1970, granting reargument of plaintiff-appellant's prior motion for summary judgment, and vacating the order entered August 31, 1970 and judgment entered September 1, 1970 thereon, and denying plaintiff-appellant's said motion for summary judgment, unanimously reversed and vacated, in the interest of justice and in the exercise of discretion; and appellant shall recover of respondent $50 costs and disbursements of this appeal; and the order of said court entered on August 31, 1970, granting plaintiff's motion for summary judgment be and the same is hereby reversed and vacated, in the interest of justice and the exercise of discretion, and said motion by plaintiff-appellant for summary judgment, brought on by notice dated June 10, 1970, is remanded to Special Term, Part I, New York County, for the calendar of February 22, 1971, for disposition on the merits by the justice there presiding, subject to the conditions hereinafter set forth. All papers filed and enumerated in the two motions resulting in the orders hereby reversed and vacated shall remain as the file of the motion hereby remanded, to which may be added other papers and documents as set forth herein. So that Special Term may be enabled to consider everything bearing on the problem presented, both parties may add to the motion file by service and filing, no later than February 8, 1971, of additional papers and exhibits, replies to which may be served and filed no later than February 16, 1971. This disposition is obviously not on the merits; indeed, it is not possible on what is before us to determine what are the merits. The original motion for summary judgment by plaintiff was based on promissory notes; with unconvincing opposition, alluding to unsupported counterclaims, it was granted. Then, in a display of professional discourtesy and with complete disregard of proper procedure, defendant brought on a motion for reargument, reconsideration, or renewal — it is not clear what — in which unsupported, unenumerated, and undescribed documents, not found in the record or the Special Term file, were handed up to the court ex parte, and they were apparently relied upon by Special Term as the basis for withdrawal and reversal of the prior ruling. It does not appear that Special Term was advised of the ex parte nature of this submission inasmuch as it was initiated by a letter to the court, a copy of which was not furnished to plaintiff's counsel prior to the submission. In the circumstances, we are left with no alternative but to remand for proper compliance with the proprieties.
Concur — Markewich, J.P., McNally, Steuer and Macken, JJ.