Argued February 7, 1985
Decided March 19, 1985
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Louis Grossman, J.
Steven DiJoseph and Peter E. DeBlasio for appellant.
Michael W. Appelbaum for respondent.
The order of the Appellate Division should be affirmed, with costs.
Plaintiff does not argue before us that on the papers before the courts below summary judgment was improperly granted. Rather he contends that Special Term abused its discretion as a matter of law by refusing to consider an affidavit of plaintiff which was delivered to the Judge's law secretary on the same day as, but several hours after, the motion was marked "submitted" on call of the calendar, because, it is argued, it had been inadvertently omitted from plaintiff's papers. Defendant's office did not receive a copy of the affidavit until the following day and, as plaintiff concedes, promptly objected to its being considered, while asking that, if the court decided to consider it, defendant be given the opportunity to reply.
It is clear from the papers that the inadvertence involved was in failing to realize the necessity for an affidavit from the party, rather than the party's attorney ( see, Zuckerman v City of New York, 49 N.Y.2d 557), not in failing to enclose with the submitted papers an affidavit previously prepared for that purpose. The affirmation of plaintiff's attorney in opposition to defendant's motion was dated some three weeks in advance of the return date and although it attached and referred to a number of other papers, contained no reference to an affidavit from plaintiff. The notice of plaintiff's cross motion for summary judgment dated six days before the return date of defendant's motion makes no reference to an affidavit from plaintiff. In light of those facts and the fact that defendant's notice of motion, served over a month before the date on which the motion and cross motion were submitted, contained a CPLR 2214 (b) notice requiring service of answering papers at least five days prior to the return date, Special Term's refusal to consider plaintiff's affidavit involved no abuse of discretion.
Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and ALEXANDER concur.
Order affirmed, with costs, in a memorandum.