Federal Pacific Electric Co. v. Rao Electric Equipment Co. , 15 A.D.2d 456 ( 1961 )

This was not a proper motion on which to grant summary judgment under rule 113 of the Rules of Civil Practice, or to grant judgment on the merits. However, under the alternative relief requested by plaintiff in its notice of motion, Special Term could have granted the relief which this court now grants, the record indisputably establishing plaintiff’s right to such relief in the exercise of discretion and as a matter of law. Rule 113 searches the evidentiary facts in the ease to determine the existence or absence of an issue of fact. Hence, the requirement, generally, for a party’s affidavit, and the inadequacy of plaintiff’s proof in this respect. In this ease, however, plaintiff established that defendant should be totally precluded on its counterclaim. Consequently, upon such preclusion, plaintiff was entitled to judgment on the pleadings, the order of preclusion serving to limit defendant’s pleading, leaving only admissions of the cause of action in chief. Since it would serve no useful purpose to remit the parties to proceedings the outcome of which would be, on this record, inescapable, this court does what Special Term could have done in the first instance (Civ. Prac. Act, § 584; 9 Carmody-Wait, New York Practice, pp. 1-83-186; cf. De Rosa v. Slattery Contr. Co., 14 A D 2d 278). Settle order on notice. Concur — Botein, P. J., Breitel, Valente, Stevens and E'ager, JJ.