Breazeal v. Rent-A-Car Club of America

Appellate Division of the Supreme Court of New York

Breazeal v. Rent-A-Car Club of America

32 A.D.2d 653, 300 N.Y.S.2d 812, 1969 N.Y. App. Div. LEXIS 3934

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

DecidedMay 19, 1969

StatusPublished

This text of 32 A.D.2d 653 (Breazeal v. Rent-A-Car Club of America) 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

Breazeal v. Rent-A-Car Club of America, 32 A.D.2d 653, 300 N.Y.S.2d 812, 1969 N.Y. App. Div. LEXIS 3934 (N.Y. Ct. App. 1969).

Pincite

Opinion

In a negligence action to recover damages for personal injury, plaintiff appeals from an order of the Supreme Court, Kings County, dated July 20, 1968, which denied her motion to restore the action to the Ready Day Calendar. Order reversed, on the law and the facts and in the exercise of discretion, without costs, and motion granted, upon condition that plaintiff’s attorneys shall personally pay respondent $250; otherwise, order affirmed, with $50 costs and disbursements. Said $250 shall be paid within 10 days after entry of the order hereon. As we recently stated in Barrada v. Target Constr. Corp. (31 A D 2d 810), we would not ordinarily disturb the exercise of discretion in such a case. This caveat is particularly true under the facts of this case where a jury had been already selected. The excuse proffered by plaintiff’s trial lawyer for not proceeding to trial was not satisfactory (cf. Gnoj v. City of New York, 29 A D 2d 404). Nevertheless, under the special circumstances here presented, the onerous consequences visited upon a seriously injured plaintiff passenger outweigh the damage and prejudice inflicted upon respondent and upon the control of the calendar in the trial parts. The tactics of the plaintiff’s attorney, however, warrant the imposition of personal costs as a precondition to the restoration of this case to the calendar. Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.

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In a negligence action to recover damages for personal injury, plaintiff appeals from an order of the Supreme Court, Kings County, dated July 20, 1968, which denied her motion to restore the action to the Ready Day Calendar. Order reversed, on the law and the facts and in the exercise of discretion, without costs, and motion granted, upon condition that plaintiff’s attorneys shall personally pay respondent $250; otherwise, order affirmed, with $50 costs and disbursements. Said $250 shall be paid within 10 days after entry of the order hereon. As we recently stated in Barrada v. Target Constr. Corp. (31 A D 2d 810), we would not ordinarily disturb the exercise of discretion in such a case. This caveat is particularly true under the facts of this case where a jury had been already selected. The excuse proffered by plaintiff’s trial lawyer for not proceeding to trial was not satisfactory (cf. Gnoj v. City of New York, 29 A D 2d 404). Nevertheless, under the special circumstances here presented, the onerous consequences visited upon a seriously injured plaintiff passenger outweigh the damage and prejudice inflicted upon respondent and upon the control of the calendar in the trial parts. The tactics of the plaintiff’s attorney, however, warrant the imposition of personal costs as a precondition to the restoration of this case to the calendar. Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.

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Bluebook (online)

32 A.D.2d 653, 300 N.Y.S.2d 812, 1969 N.Y. App. Div. LEXIS 3934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/breazeal-v-rent-a-car-club-of-america-nyappdiv-1969.