Petitioner's application for adjournment to make a motion for summary judgment is granted
for the reasons stated on the record. The proceeding is adjourned to 11/29/11 Part R 9:30 for said
motion. Petitioner's motion to be served and filed by November 29, 2011. Petitioner's application
was made in lieu of trial. Respondent's GAL may also file opposition to the motion.
On November 29, 2011, the proceeding appeared before this Court for the first time. On that
date, Betty Marshall made an oral application to be relieved as GAL, and Respondent made an
application to have Ms. Marshall removed as his GAL. The Court denied both applications,
pursuant to a written order, which also adjourned the proceeding, to afford Respondent additional
time to submit opposition papers to the Court. The additional papers were to be submitted by
December 5, 2011. Respondent did submit papers in opposition by December 5, 2011, Petitioner
submitted a reply on December 8, 2011, and the Court reserved decision.[FN1]
DISCUSSION
"The proponent of a summary judgment motion must
make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate
any material issues of fact from the case (Winegrad v. New York Univ. Med. Ctr., 64
NY2d 851, 853)."In this proceeding, Respondent's answer has been stricken in its entirety, and
no affirmative defense remains to the claims in the petition. In Wilson v. Galicia Contracting &
Restoration Corp. 10 NY3d 827, 830, the Court of Appeals held that where an answer
has been stricken, based on a failure to comply with discovery, the defaulting party is precluded
from presenting evidence to defeat the cause of action, and said party is deemed to have admitted