STATE OF NEW YORK
SUPREME COURT : COUNTY OF CHAUTAUQUA
CITIBANK (NEW YORK STATE),
-vs- Index #H-08086
MARK H. NELSON;
CITIBANK (NEW YORK STATE);
CITY OF JAMESTOWN;
"JOHN DOE" AND "JANE DOE",
HOWARD R. CRANE, ESQ.
JAMES E. WESTMAN, ESQ.
for Defendant Nelson
MICHAEL J. RYAN, ESQ.
for Defendant Integra
DECISION AND ORDER
Summary judgment is a drastic remedy that will not be granted if there is any doubt as to the existence of a triable issue. As a procedural equivalent of a trial, it is used sparingly. Rather than resolve issues, it decides whether issues exist. SIEGEL, NEW YORK PRACTICE, §278 and cases cited.
Here, defendant has failed to introduce a single item of evidence to support his claims; he has failed to aggressively pursue avenues that could lead to evidence, i.e., seeking a copy of the $20,000 check he claims wife paid; failed to produce year end statements from the bank; pursuit of discovery as part of his divorce; failed to produce documentation from the divorce proceedings of an accounting of the alleged payment to the wife of the $160,000 to "settle several matters like the subject Bond and Mortgage". (Nelson affidavit).
Defendant's papers reveal tardy efforts to bolster his credit report "evidence".
Nevertheless, while defendant's papers are too weak to defeat the motion, there is enough alleged to justify giving defendant a further opportunity to secure affidavits or conduct disclosure. CPLR §3212(f).
This motion is adjourned to April 24, 1995 at 9:00 A.M. to permit defendant to depose his former wife and/or obtain bank records: for either or both parties to search the record of the divorce papers; for such other discovery and affidavits as will assist in the determination of this motion. Defendant's application to depose counsel for the plaintiff is denied at this time.
Defendants' papers must be submitted to plaintiff and the Court no later than 2 weeks before the return date of this adjournment.
This is the Decision and Order of this Court. No further order is necessary.
Dated: March 8, 1995
Mayville, New York
Justice of Supreme Court