Estate of Honore V. De St. Aubin, Deceased, Ovide E. De St. Aubin, Executor, et al. - Page 21

                                       - 21 -                                         



                            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                





Page:  Previous  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  Next

Last modified: May 25, 2011