Baralan International, S. p. A. v. Vetrerie Bormioli Ing. Luigi S.p.A.

Appellate Division of the Supreme Court of New York

Baralan International, S. p. A. v. Vetrerie Bormioli Ing. Luigi S.p.A.

215 A.D.2d 338, 627 N.Y.S.2d 44, 1995 N.Y. App. Div. LEXIS 5781

Appellate Division of the Supreme Court of the State of New York·Decided May 30, 1995·Published·Cited by 2 cases

Opinion

Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered March 10, 1994, which granted plaintiffs motion pursuant to CPLR 3217 (b) to voluntarily discontinue the action against defendant Avant Industries, Limited, with prejudice, but without costs, disbursements or attorneys’ fees against any party, unanimously reversed, on the law, to the extent appealed from, to condition said discontinuance upon the payment by plaintiff of Avant’s costs, disbursements and reasonable attorneys’ fees from the inception of this action to date and to remand the matter for determination of a suitable amount, with costs.

In this now sixteen-year-old action for goods sold and delivered, where the record amply supports Avant’s contention that plaintiff, an Italian manufacturer, has been largely responsible for the delays which have not only prejudiced Avant by its having to defend this action at considerable expense over so many years but, as noted by Trial Term, have abused the resources of the New York courts, including two prior appeals to this Court, it was an abuse of the court’s discretion in failing to condition the discontinuance upon payment of Avant’s costs, disbursements and reasonable attorneys’ fees. Concur—Rosenberger, J. P., Wallach, Rubin, Kupferman and Asch, JJ.

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Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered March 10, 1994, which granted plaintiffs motion pursuant to CPLR 3217 (b) to voluntarily discontinue the action against defendant Avant Industries, Limited, with prejudice, but without costs, disbursements or attorneys’ fees against any party, unanimously reversed, on the law, to the extent appealed from, to condition said discontinuance upon the payment by plaintiff of Avant’s costs, disbursements and reasonable attorneys’ fees from the inception of this action to date and to remand the matter for determination of a suitable amount, with costs.

In this now sixteen-year-old action for goods sold and delivered, where the record amply supports Avant’s contention that plaintiff, an Italian manufacturer, has been largely responsible for the delays which have not only prejudiced Avant by its having to defend this action at considerable expense over so many years but, as noted by Trial Term, have abused the resources of the New York courts, including two prior appeals to this Court, it was an abuse of the court’s discretion in failing to condition the discontinuance upon payment of Avant’s costs, disbursements and reasonable attorneys’ fees. Concur—Rosenberger, J. P., Wallach, Rubin, Kupferman and Asch, JJ.

Baralan International, S. p. A. v. Vetrerie Bormioli Ing. Luigi S.p.A., 215 A.D.2d 338, 627 N.Y.S.2d 44, 1995 N.Y. App. Div. LEXIS 5781 (N.Y. Ct. App. 1995).

Pincite

215 A.D.2d 338 (Baralan International, S. p. A. v. Vetrerie Bormioli Ing. Luigi S.p.A.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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