Pross v. Foundation Properties, Inc.

The question presented on this motion for reargument is whether, under rule 113 of the Rules of Civil Practice, a defendant may move for summary judgment dismissing the complaint in an action not included in the eight enumerated classes of actions in which a plaintiff might so move, where the defense is founded upon facts established prima facie by documentary evidence or official record. I held that he could. My attention has been called to a recent decision of the Appellate *305Division, Second Department, which unanimously stated, by way of dictum, that he could not; that a defendant’s right…