Musler v. Brooks, Inc.

Latter, J.

The plaintiff moves for reargument of the motion heretofore made granting summary judgment in favor of the defendant. It appears that on the original application plaintiff had heretofore stipulated that he would not file any further affidavits in consideration of his being permitted additional time to submit an opposing affidavit. In support of the present motion he submits an affidavit which is replete with new matter. The defendant urges that this affidavit be disregarded by the court, first, because of the stipulation above referred to, and second, because of the well-settled principle of law that rearguments must necessarily be confined to the matter contained on the original application.

The objections raised by the defendant on this application have been considered by the court. While the defendant’s position is technically correct, yet had the plaintiff applied for permission to file his present affidavit for the court’s consideration on the original motion, in the exercise of his discretion this would have been authorized. The court, therefore, in the interest of substantial justice, will consider also that the plaintiff applies herein for leave to file his present affidavit on the original motion and that the court consider the same as though it had been timely presented.

The statements contained in the plaintiff’s present affidavit have been read by the court and noted. Although these statements might not receive much weight by a trial court or jury in deciding in his favor, nevertheless, they do raise questions of fact which, had they been properly and timely presented on the original motion, would have been sufficient to require the court to deny summary judgment.

Under the circumstances disclosed herein the motion for reargument is granted upon payment of ten dollars costs to defendant. The court will permit the plaintiff’s present affidavit to be filed as though the same had been presented on the original motion upon payment of the costs. Upon such reargument the defendant’s motion for summary judgment is accordingly denied. Settle order.