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the notice of determination. Respondent asserts as an undisputed
fact that during the telephone conference, Mr. Burke promised to
respond by “the end of the week” but failed to do so. In his
response to respondent’s motion for summary judgment, petitioner
states without qualification that he does not oppose this factual
assertion. Inconsistently, petitioner’s response later states,
with regard to another of respondent’s assertions of undisputed
fact: “The record does not support the setting of any deadline
by any party”; petitioner represents that Mr. Burke has “no
recollection of making any promise to ‘call ... by the end of the
week’”. To resist summary judgment, it is not sufficient to rest
upon mere allegations or denials of the other party’s pleadings;
rather, the response must “set forth specific facts showing that
there is a genuine issue for trial.” Rule 121(d). Petitioner
has failed to do so.
For the reasons stated herein, we find and hold that there
is no genuine issue as to any material fact remaining for
litigation and that a decision may be rendered as a matter of
law. Accordingly,
An appropriate order and
decision will be entered.
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Last modified: May 25, 2011