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NEW YORK SUPREME COURT APPELLATE DYVISION-: FIRST-DEPARTMENT X ROBERT BRIAN'ASSOCIATES, INC., Plaintiff-Respondent, ' - against - STATE OF NEW YORK ) .ss.: COUNTY OF NEW YORK) AFFIDAVIT IN OPPOSITION LEONARD R. GLASS being duly sworn, deposes 3 am the attorney for the plaintiff-respondent aind says : by the defendant-appellant for reargument of the appeal in and submit this affidavit in opposition to the motion made this matter, or, alternatively for leave to appeal to the 'Court of Appeals from the Order of this Court dated July 10, 1979. ' AS TO THE MOTION' FOR RE-.71RGUMENT ~ to those facts. davit, this Court neither overlooked no.misapprehended any'of the facts of record and proper application of pertinent authorit Contrary to the statement made in the moving affi-

once again the same arguments which it heretofore tendered to the Court on the appeal itself. These arguments were presented extensively and exhaustively in a brief, (77 pages) required special permission. whose length Comparison of that brief with the present motion shows an identity of the appellant's contentions. arguments"'.of the appeal the same contentions were On the fully the bench explored by:counsel in response to questions from in the oral presentation. fail to apply the applicable law. The opinion demonstrates a precise understanding of the factual contents of the Record on Appeal and the applicable legal authorities. . The opinion rendered by this Court clearly demonstrates that the Court did not misapprehend the facts or AS TO MOTION FOR LEAVE TO APPEAL The respondent-appellant has failed to provide any grounds for permission to appeal to the Court of Appeals. . This appeal involved matters of specific contractual The reasons tendered by the appellant are without merit. the jury. may have reasonably found the terms of the contract, as :o.:~.. argument of the appeal the appellant conceded the existence Ck-- M+ of a contract between the parties. This Court's xuling that ~ relationships between the parties and, indeed-, on the oral enunciated in the opinion, does not present any issue of novelty or of first impression which would motivate the Court to grant

permission to appeal to the Court of Appeals. i There have been no "substantial modifications of oral argument to the precise issuEs raised`oriythis and a re-reading of appellant-respondent's brief discloses-that this motion restates the same issues raised in the-brief filed by defendant-appellant with thi;s Court ` , on the initial appeal: The defendant-appellant's attempt to change the facts of the case and applicable law was-not accepted by either the jury, the Trial Judge or this Court. This contention is totally unsupported and the reasing of this Court's opinion makes it clear that no grounds. WHEREFORE, it is respectfully prayed that for reargument, for leave to*appeal to th,. ecourt Sworn to before me this 17th day of August, 1979. prior New York law implicit in this Court's contended by the appellant. decision", Defendant-appellant devoted a substantial part T NOTARY PUBLIC L10AiEL A. BAP.'ASCM rfl}a~ Public. S!ate of ,'~lbw Yur,k ~ ~ No31-403417 C~un'V ualtl+etl 'in Nbw YorR ~tnmission ExPlres Mercfi 30, 1~ 3