Baldwin & Cornelius Co. v. Blue Harbor Realty Co.

Appellate Division of the Supreme Court of New York

Baldwin & Cornelius Co. v. Blue Harbor Realty Co.

46 A.D.2d 649, 359 N.Y.S.2d 683, 1974 N.Y. App. Div. LEXIS 4023

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 7, 1974

StatusPublished

This text of 46 A.D.2d 649 (Baldwin & Cornelius Co. v. Blue Harbor Realty Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baldwin & Cornelius Co. v. Blue Harbor Realty Co., 46 A.D.2d 649, 359 N.Y.S.2d 683, 1974 N.Y. App. Div. LEXIS 4023 (N.Y. Ct. App. 1974).

Pincite

Opinion

— In consolidated actions to recover a balance claimed for services rendered (Action No. 1) and to recover damages inter alia for breach of contract (Action No. 2), the appeal is from two orders of the Supreme Court, Nassau County, the first, dated April 19,1974, which on motion of plaintiff in Action No. 1, inter alia restored that action to the Trial Calendar, and the second, dated May 6, 1974, which denied appellant’s motion for reargument. Appeal from the order of May 6,1974 dismissed, without costs. No appeal lies from an order denying a motion for leave to reargue a prior motion. Order of April 19,1974 modified by striking therefrom the provision which severed Action No. 2 and returned it to Kings County. As so modified, said order is affirmed, without costs. Under the circumstances of this case, in which these two actions arising out of the same transaction were consolidated, we conclude it was an abuse of discretion to vacate the dismissal of one action (Action No. 1) and restore it to the calendar and not afford the same treatment, as requested in the motion papers, to the other (Action No. 2). In severing Action No. 2, Trial Term noted that the attorney for the plaintiff therein had defaulted on the motion and that that action had been abandoned. In view of the fact, however, that that plaintiff was joining in the request to vacate there was no need to oppose the motion and the failure to' do so did not constitute a default or abandonment of the action. Gulotta, P. J., Hopkins, Shapiro, Cohalan and Munder, JJ., concur.

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— In consolidated actions to recover a balance claimed for services rendered (Action No. 1) and to recover damages inter alia for breach of contract (Action No. 2), the appeal is from two orders of the Supreme Court, Nassau County, the first, dated April 19,1974, which on motion of plaintiff in Action No. 1, inter alia restored that action to the Trial Calendar, and the second, dated May 6, 1974, which denied appellant’s motion for reargument. Appeal from the order of May 6,1974 dismissed, without costs. No appeal lies from an order denying a motion for leave to reargue a prior motion. Order of April 19,1974 modified by striking therefrom the provision which severed Action No. 2 and returned it to Kings County. As so modified, said order is affirmed, without costs. Under the circumstances of this case, in which these two actions arising out of the same transaction were consolidated, we conclude it was an abuse of discretion to vacate the dismissal of one action (Action No. 1) and restore it to the calendar and not afford the same treatment, as requested in the motion papers, to the other (Action No. 2). In severing Action No. 2, Trial Term noted that the attorney for the plaintiff therein had defaulted on the motion and that that action had been abandoned. In view of the fact, however, that that plaintiff was joining in the request to vacate there was no need to oppose the motion and the failure to' do so did not constitute a default or abandonment of the action. Gulotta, P. J., Hopkins, Shapiro, Cohalan and Munder, JJ., concur.

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Bluebook (online)

46 A.D.2d 649, 359 N.Y.S.2d 683, 1974 N.Y. App. Div. LEXIS 4023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baldwin-cornelius-co-v-blue-harbor-realty-co-nyappdiv-1974.