Banfield v. Kelly

Appellate Division of the Supreme Court of New York

Banfield v. Kelly

21 A.D.2d 683, 251 N.Y.S.2d 929, 1964 N.Y. App. Div. LEXIS 3779

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

DecidedMay 18, 1964

StatusPublished

This text of 21 A.D.2d 683 (Banfield v. Kelly) 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

Banfield v. Kelly, 21 A.D.2d 683, 251 N.Y.S.2d 929, 1964 N.Y. App. Div. LEXIS 3779 (N.Y. Ct. App. 1964).

Pincite

Opinion

In a negligence action, the plaintiff appeals from two orders of the Supreme Court, Queens County: (1) an order dated April 26, 1963, which granted the defendant’s motion to dismiss the complaint for failure to diligently prosecute the action; and (2) an order, dated September 23, 1963, which, on reargument, adhered to the original decision and again granted the defendant’s motion to dismiss. Appeal from order dated April 26, 1963, dismissed, without costs; that order was superseded by the later order. Order, dated September 23, 1963, insofar as it adheres to the prior decision and grants the motion to dismiss, reversed, with $10 costs and disbursements to plaintiff, and motion to dismiss denied, without prejudice to an application by plaintiff to transfer the action to the Civil Court of the City of New York, if the plaintiff be so advised. Under all the circumstances here, we believe it was an improvident exercise of discretion to dismiss the action. Beldock, P. J., Christ, Brennan, Rabin and Hopkins, J J., concur.

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In a negligence action, the plaintiff appeals from two orders of the Supreme Court, Queens County: (1) an order dated April 26, 1963, which granted the defendant’s motion to dismiss the complaint for failure to diligently prosecute the action; and (2) an order, dated September 23, 1963, which, on reargument, adhered to the original decision and again granted the defendant’s motion to dismiss. Appeal from order dated April 26, 1963, dismissed, without costs; that order was superseded by the later order. Order, dated September 23, 1963, insofar as it adheres to the prior decision and grants the motion to dismiss, reversed, with $10 costs and disbursements to plaintiff, and motion to dismiss denied, without prejudice to an application by plaintiff to transfer the action to the Civil Court of the City of New York, if the plaintiff be so advised. Under all the circumstances here, we believe it was an improvident exercise of discretion to dismiss the action. Beldock, P. J., Christ, Brennan, Rabin and Hopkins, J J., concur.

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Bluebook (online)

21 A.D.2d 683, 251 N.Y.S.2d 929, 1964 N.Y. App. Div. LEXIS 3779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banfield-v-kelly-nyappdiv-1964.