SUPREME COURT: CHAUTAUQUA COUNTY
TILDEN FINANCIAL CORP.
vs Index #H-10436
CURT B. WESTROM
PREMO & PIERRO, P.C.
(Patrick J. MacKrell, Esq.
of Counsel) for Plaintiff
WRIGHT, WRIGHT & HAMPTON
(Edward P. Wright, Esq.
of Counsel) for Defendant
DECISION AND ORDER
DEFENDANT'S MOTION TO REARGUE
Defendant's motion to reargue the June 23, 1995
Decision and Order of this Court granting plaintiff summary
judgment is denied, without prejudice.
The only affidavit supporting the motion is that of
defendant's attorney. An attorney's affidavit is
insufficient on a summary judgment motion. See DAVID D.
SIEGEL, NEW YORK PRACTICE, Sec. 281. This Court holds that
the same applies on a motion to reargue a summary judgment
motion where the party attempts to raise a question of
fact, not law.
The motion to reargue seeks to convince the Court it
was wrong and ought to change its mind; it is not based on
new proof. Although reference was made in the affidavits
of both attorneys to defendant Westrom's affidavit on the
prior motion, neither submitted a copy.
Any new motion to reargue must be made within 30 days
of the entry of this order. Plaintiff's response may
incorporate copies of its response to the instant motion,
but, must include answers to paragraphs 6 and 8 of
defendant's July 11, 1995 Demand for Interrogatories to
elaborate on what occurred to equipment covered by the
lease repossessed by plaintiff and to amplify the
statements in paragraph 35 and 36 of Henry C. Magel's
January 27, 1995 affidavit.
On August 9, 1993, defendant Westrom executed a
REAFFIRMATION OF GUARANTY required for the restructured
lease; interrogatories directed to events, etc., before
that date would not now be appropriate.
Defendant's motion to reargue is denied, without
prejudice to resubmit within 30 days.
THIS IS THE DECISION AND ORDER OF THIS COURT. NO
FURTHER ORDER SHALL BE NECESSARY, EXCEPT THAT PLAINTIFF
MUST SUBMIT FOR THE APPROVAL AND FILING BY THIS COURT OF A
LIST OF THE PAPERS SUBMITTED BY BOTH PARTIES ON THIS
Dated: November , 1995
Mayville, New York
Supreme Court Justice
To all Counsel:
Please take notice that a DECISION and ORDER of
which the within is a copy, is duly granted in the above
entitled action on the day of , 1995, and
duly entered in the office of the Clerk of the County of
Chautauqua on .