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Respondent argues that, by application of
Rule 121(e), the Court should deny petitioners' motion for
partial summary judgment. Respondent asserts that the
manner in which Mr. de St. Aubin's estate was administered
is a material fact in dispute. The Commissioner further
contends that petitioners are in possession and control
of the information regarding this material fact, and that
the Commissioner's only legally available method of
controverting the facts set forth by petitioners is through
the examination of petitioners' affiants or through
examination of hostile witnesses from whom affidavits
cannot be secured. Therefore, respondent states that,
pursuant to Rule 121(e), petitioners should not be able to
prevent respondent from cross-examining petitioners'
witnesses by filing a motion for partial summary judgment.
Petitioners attached the affidavit of Martin Drazen
to their motion for partial summary judgment. In addition,
petitioners attached the affidavits of Chester Nuttall,
Ovide E. de St. Aubin, and Corinne Shaw to their
supplemental memorandum of law. Respondent has not
disputed the material facts that are contained therein.
As will be explored herein, the other facts that respondent
claims are in dispute are immaterial to the resolution of
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