Gluck v. Rosenstiel
| Decision Date | 21 February 1967 |
| Citation | 277 N.Y.S.2d 596,27 A.D.2d 715 |
| Parties | Nat GLUCK, Plaintiff-Appellant, v. Lewis S. ROSENSTIEL and Schenley Industries, Inc., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
A. L. Pomerantz, New York City, for plaintiff-appellant.
R. M. Cohn, New York City, for defendants-respondents.
Before BOTEIN, P.J., and STEVENS, STEUER, RABIN and McNALLY, JJ.
Order entered on August 15, 1966 granting motion by defendants for summary judgment, and judgment entered thereon on August 16, 1966, reversed, on the law and the facts and in the exercise of discretion, without costs or disbursements, defendants' motion for summary judgment denied, and the matter remanded to the Justice by whom the motion was heard for further proceedings in accordance with this memorandum.
Our prior decision (25 A.D.2d 838, 270 N.Y.S.2d 136) contemplated that defendants might renew their motion for summary judgment and that plaintiff might move for an examination before trial. When defendants did renew their motion plaintiff submitted an affidavit of counsel urging inter alia that the motion be adjourned pursuant to CPLR 3212(f) in order to enable plaintiff to seek disclosure in this action or in a companion suit pending in Delaware. Upon the oral argument at Special Term the court inquired whether plaintiff wanted additional time to obtain affidavits in opposition to the motion or take depositions, and plaintiff's counsel stated he would rest on the papers.
No record was made of this exchange; but whatever was said, it is quite likely that the court, in the context of the argument, received the impression that plaintiff did not wish further time for discovery proceedings and was willing that the merits of the motion for summary judgment be decided on the papers then before the court. It is regrettable that we do not have a transcript of the argument. Since plaintiff's counsel, however, has represented to this court unreservedly that he had no intention of abandoning his request for an adjournment, and his desire for an opportunity to seek depositions is strongly put forth in the affidavit he submitted at Special Term, it is fair to infer that the impression he created at the hearing there resulted from inadvertent failure of communication. No substantial prejudice to defendants appearing, it is appropriate that the misunderstanding be remedied. Accordingly, and without intimating any view about the merits of defendants' motion or about plaintiff's claim to an examination, we vacate the order and judgment and remand the matter to the Justice by whom it was heard for consideration de novo upon the papers submitted and any additional appropriate papers.
All concur except STEVENS and BENJAMIN J. RABIN, JJ., who dissent in the following memorandum by RABIN, J.
I dissent and vote to affirm the order and judgment appealed from which granted defendants-respondents' motion for summary judgment, dismissing the complaint against them on the merits.
The gravamen of the action is that Schenley's public tender offer to purchase 1,000,000 shares of its stock at a price somewhat higher than that of the market was not made in good faith and would not serve any legitimate business purpose of Schenley.
There had been a prior order granting summary judgment to the defendants-respondents which this Court reversed. In so doing we stated that it was 'without prejudice, however, to renewal of the motion on fuller papers or following examination before trial * * * if such examinations should be obtained.' (Gluck v. Rosensteil, 25 A.D.2d 838, 270 N.Y.S.2d 136.)
The defendants have now, in compliance with our decision, submitted fuller papers, while up to the time of this new motion for summary judgment the plaintiff has not made any application for...
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