Bigaj v. Gehl

Order unanimously affirmed with costs. Memorandum: We agree with Supreme Court that defendants did not abandon their counterclaim; thus, the protective order was properly denied. Plaintiffs motion for summary judgment dismissing the counterclaim was properly denied because it was untimely made. The motion was made on only two days’ notice and defendant did not have an adequate opportunity to submit answering affidavits (see, Burstin v Public Serv. Mut. Ins. Co., 98 AD2d 928; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2214:12). (Appeal from order of Supreme Court, Erie County, Forma, J. — discovery; summary judgment.) Present — Dillon, P. J., Denman, Boomer, Green and Davis, JJ.