Brennan v. Tully & Di Napoli, Inc.

Appellate Division of the Supreme Court of New York

Brennan v. Tully & Di Napoli, Inc.

32 A.D.2d 756, 1969 N.Y. App. Div. LEXIS 3783

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

DecidedJune 10, 1969

StatusPublished

This text of 32 A.D.2d 756 (Brennan v. Tully & Di Napoli, Inc.) 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

Brennan v. Tully & Di Napoli, Inc., 32 A.D.2d 756, 1969 N.Y. App. Div. LEXIS 3783 (N.Y. Ct. App. 1969).

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Opinion

Motion for leave to appeal as a poor person denied as moot in view of the decision on Motion 696 [Case No. 17]. Concur—McGivern, J. P., McNally and 'Steuer, JJ.; Nunez, J., ¡dissents in a memorandum. I dissent. Appellant is being penalized for her lack of financial resources and consequent inability to timely perfect the appeal in this death case. In response to the motion to dismiss, appellant has submitted her affidavit explaining why she was unable to perfect the appeal, and her attorney’s affidavit showing merit. The grounds urged as error are the trial court’s improper refusal to admit evidence of prior accidents at the same location, and refusal to allow counsel for appellant to select his own jury. The merits are thus proffered and it cannot be said, at this point of the proceeding, that the appeal is without any basis. 'Simply put, the reason for the delay is alleged to be appellant’s inability to timely perfect the appeal due to lack of funds. In this regard her affidavit is quite candid. Appellant is the wife and administratrix of the decedent’s estate. While she has remarried, her husband does not earn sufficient to help her with the appeal; her meager income is used for the maintenance of her four minor children of the prior marriage to the decedent. I believe - this affidavit is sufficient to show the appellant’s status as being entitled to poor person relief, and to excuse her delay in prosecuting the appeal. The facts of this case, the nature of the cause of action, and the asserted merit to the appeal, all indicate that the reason for the delay in perfecting the appeal is as appellant claims. For these reasons, I would deny the motion to dismiss and permit the cross-application for poor .person relief to the extent requested, and extend time to perfect the appeal to the September 1969 Term of this court.

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Motion for leave to appeal as a poor person denied as moot in view of the decision on Motion 696 [Case No. 17]. Concur—McGivern, J. P., McNally and 'Steuer, JJ.; Nunez, J., ¡dissents in a memorandum. I dissent. Appellant is being penalized for her lack of financial resources and consequent inability to timely perfect the appeal in this death case. In response to the motion to dismiss, appellant has submitted her affidavit explaining why she was unable to perfect the appeal, and her attorney’s affidavit showing merit. The grounds urged as error are the trial court’s improper refusal to admit evidence of prior accidents at the same location, and refusal to allow counsel for appellant to select his own jury. The merits are thus proffered and it cannot be said, at this point of the proceeding, that the appeal is without any basis. 'Simply put, the reason for the delay is alleged to be appellant’s inability to timely perfect the appeal due to lack of funds. In this regard her affidavit is quite candid. Appellant is the wife and administratrix of the decedent’s estate. While she has remarried, her husband does not earn sufficient to help her with the appeal; her meager income is used for the maintenance of her four minor children of the prior marriage to the decedent. I believe - this affidavit is sufficient to show the appellant’s status as being entitled to poor person relief, and to excuse her delay in prosecuting the appeal. The facts of this case, the nature of the cause of action, and the asserted merit to the appeal, all indicate that the reason for the delay in perfecting the appeal is as appellant claims. For these reasons, I would deny the motion to dismiss and permit the cross-application for poor .person relief to the extent requested, and extend time to perfect the appeal to the September 1969 Term of this court.

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Bluebook (online)

32 A.D.2d 756, 1969 N.Y. App. Div. LEXIS 3783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brennan-v-tully-di-napoli-inc-nyappdiv-1969.