SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
December 17, 1968
BURRELL A. PARKHURST, RESPONDENT,
WILLIAM E. STOCKHAUSEN, APPELLANT
Concur -- Stevens, J. P., Eager, Capozzoli, McGivern and Bastow, JJ.
This action was commenced by service of a summons and notice of motion for summary judgment (CPLR 3213). In denying that motion, Special Term clearly stated that the instrument upon which summary relief was sought was not one within the contemplation of CPLR 3213. The court, however, did not direct that a complaint be served. Thereafter, plaintiff served notice to examine defendant and the latter moved for a protective order. The record before us is not sufficiently complete to determine plaintiff's claimed right to an examination before trial. While CPLR 3213 provides that in the absence of a direction to the contrary "the moving and answering papers shall be deemed the complaint and answer," the record on this appeal does not contain the answering papers before the court on the motion for summary judgment. In the absence of formal pleadings or all of the affidavits used on the application for summary judgment, there is no basis for ascertaining the "issues" upon which an examination is sought, nor the propriety of permitting an examination. We conclude, therefore, that a protective order should have been granted and that, in the exercise of a proper discretion by this court, orderly procedure warrants a direction that a complaint be served and that the action proceed thereafter in usual course. Appeal dismissed. (See disposition of motion No. 5980, decided simultaneously herewith.) Motion to dismiss appeal from "order" of September 3, 1968, granted, with $10 costs.
Order entered August 21, 1968, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs or disbursements, motion for a protective order granted and plaintiff directed to serve a complaint within 20 days after service of a copy of the order hereon with notice of entry.
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