Carr v. Carruth

¶1dissent and vote to reverse in the following memorandum by Mahoney, P. J. Mahoney, P. J. (dissenting). There should be a reversal of the October 9, 1980 order. While it is true that an attorney’s affidavit concerning matters about which he has no personal knowledge has little, if any, probative value (Israelson v Rubin, 20 AD2d 668, affd 14 NY2d 887), such a deficiency in papers opposing a motion should not result in automatic relief where, as here, the moving party has failed to establish any conduct by her adversary inimical to her interests. A careful reading of the terms of the settlement agreement makes it evident that the terms of the contract are interdependent and it is impossible for the parties to execute a stipulation of discontinuance, which would finalize the RPAPL article 15 action, absent a sale of the premises and an exchange of the quitclaim deed for the consideration of $14,000. It appears from the record that a contract for the sale is imminent and there is nothing in the moving papers that charges defendant with an intention to avoid his obligation, pursuant to the settlement stipulation, if the sale is consummated and the required deposit is made with plaintiff’s attorney. Where, as here, there is no clear statement in the motion papers that would mandate relief for the movant despite the deficiencies in the opposing documents, the better practice would be for the court to hold an *802evidentiary hearing. Such a procedural device would preserve the advantages of motion practice and better inform Special Term as to the actual dispute between the parties (see Teitelbaum Holdings v Gold, 48 NY2d 51, 55-56, n 2). If such a procedure had been followed, it would have become evident that specific performance of the three-part settlement agreement would be totally inequitable since it would require defendant to execute a stipulation of discontinuance of the article 15 action without the benefit of a trial and without receiving any proceeds from a sale of the realty which is the subject of the article 15 action. In sum, judgment would effectively be rendered against defendant solely on the ground that plaintiff was experiencing difficulty selling the property. The more equitable relief would have been to grant partial specific performance of the settlement agreement requiring defendant to deposit the quitclaim deed in escrow. In fact, the implication of the majority’s statement is that defendant is only required to deposit the deed and the other two steps will follow. This is not the substance of the appealed order. Since the order entered October 9,1980 should be reversed, no consideration of the order which denied defendant’s motion to vacate the original order is required and the appeal therefrom should be dismissed as academic.