Abel v. Monteleone

39 A.D.2d 741, 332 N.Y.S.2d 859, 1972 N.Y. App. Div. LEXIS 4645

Opinion

Proceeding pursuant to article 78 of the CPLR to compel respondent, a Supreme Court, Kings County, to sign a proposed interlocutory judgment in an action entitled “Martin Honig, plaintiff, v. Harry Rehell, Jacob Cohen, a co-partnership d/b/a J. C. Management Co., defendants.” On April 21, 1972, a jury returned a verdict in favor of plaintiff on the issue of liability. On April 24, 1972 the jury was discharged. On April 25, 1972, petitioner, who is associated with defendants’ attorney, served a proposed interlocutory judgment, with notice of settlement. Respondent refused to sign the proposed interlocutory judgment. Petitioner also couples with his application a motion to stay all further proceedings pending a proposed appeal from the yet unsigned interlocutory judgment. Application granted, without costs; respondent is directed to sign the proposed interlocutory judgment forthwith (Matter of Parker Constr. Corp. v. Williams, 35 A D 2d 839). The trial of the action on the issue of damages is stayed pending appeal from the interlocutory judgment, on condition that petitioner (1) serve and file a timely notice of appeal from the interlocutory judgment and (2) perfect an appeal for the September term, which begins September 6, 1972, and be ready to argue or submit the appeal for said term (petitioner must file a note of issue). The record and appellants’ brief on such appeal must be served and filed on or before July 31, 1972; and respondent’s brief thereon must be served and filed on or before August 14,1972. Motion by respondent to dismiss the proceeding on the ground that the petition fails to state a cause of action in that the refusal to sign the interlocutory judgment was an exercise of judicial discretion. Motion denied. Hopkins, Acting P. J., Munder, Martuscello, Latham and Shapiro, JJ., concur.