W. W. Norton & Co. v. Roslyn Targ Literary Agency, Inc. ( 1981 )

Sandler, J.,

dissents in part in a memorandum as follows: The majority memorandum is unquestionably correct that on this record defendant was entitled to summary judgment. I believe that the able and experienced Special Term Judge understood that as well as we do. When his opinion is read in the context of the record, it seems to me quite likely that Special Term concluded that plaintiff had not submitted an affidavit on the critical issue by a person having knowledge of the facts, not because such an affidavit could not have been submitted, but because plaintiff’s counsel mistakenly believed that the allegations in the verified complaint were legally sufficient to raise the issue. Rather than terminate the litigation on the merits in the face of that very real possibility, Special Term opted to deny the motion for summary judgment without prejudice to renewal. Implicitly recognizing this possible explanation for Special Term’s determination, the majority memorandum, although granting summary judgment to the defendant, carefully indicates a possible route for remedial action. I think that a preferable (although unorthodox) method for achieving the same purpose under these circumstances would be for this court to vacate the order denying summary judgment and remand the motion to Special Term. If, as I have surmised, Special Term believed the failure to interpose an appropriate affidavit was the result of a procedural oversight by counsel, this disposition of the appeal would permit an opportunity for plaintiff to submit an appropriate affidavit so that the motion could be determined on the merits. If this analysis of what occurred is erroneous, no harm would be done. It would simply remain for Special Term to grant defendant’s motion for summary judgment. Accordingly, the order of the Supreme Court, New York County, entered September 9, 1980 denying defendants’ motion for summary judgment, should be modified by vacating the order, and remanding the motion to Special Term.