Kallen

Introduction

Defendant Samuel P. Delug appeals from a summary judgment entered in favor of plaintiff Norman H. Kallen on the first and second causes of action of plaintiff’s second amended complaint, alleging respectively the breach of an oral contract and the breach of a written contract.

Procedural Background

In January 1979, plaintiff filed a complaint against defendant and others, alleging nine separate causes of action on various theories, including breach of contract, fraud and quantum meruit. Following assorted procedural rulings, defendant answered plaintiff’s second amended complaint and the parties undertook discovery proceedings. Ultimately, the matter was set for trial on June 28, 1982.

On May 22, 1982, defendant moved for an order determining certain issues to be without substantial controversy (formerly a motion for partial summary judgment), the motion to be heard on June 1. After plaintiff interposed an objection on the ground the motion had been made less than 45 days before the commencement of trial, the court continued the matter to June 28, 1982, determining that it should be heard at time of trial. Thereafter, due to court congestion, the trial…