Briskman v. Kushner

Appellate Division of the Supreme Court of New York

Briskman v. Kushner

33 A.D.2d 1042, 308 N.Y.S.2d 818, 1970 N.Y. App. Div. LEXIS 5424

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

DecidedFebruary 25, 1970

StatusPublished

Cited by2 cases

This text of 33 A.D.2d 1042 (Briskman v. Kushner) 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

Briskman v. Kushner, 33 A.D.2d 1042, 308 N.Y.S.2d 818, 1970 N.Y. App. Div. LEXIS 5424 (N.Y. Ct. App. 1970).

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Opinion

In a 'negligence action to recover damages for personal injuries, which action was dismissed as abandoned (CPLR 3404), plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County, dated August 20, 1969, as, after granting renewal of her prior motion for leave to file a statement of readiness nunc pro tunc, denied said prior motion and also her motion to vacate the dismissal of the action. Order reversed insofar as appealed from, on the law and the facts, with one bill of $10 costs jointly against respondents filing separate briefs, and motions for leave to file a statement of readiness and to vacate the dismissal of the action granted. In our opinion, the record sufficiently establishes that plaintiff never intended to abandon the action. Absent demonstrated prejudice to defendants, it was an improvident exercise of discretion to deny the motion (cf. Marco v. Sachs, 10 N Y 2d 542; Tactuk v. Freiberg, 24 A D 2d 503; Boyle v. Krebs & Schulz Motors, 18 A D 2d 1010; Blau v. Levine, 28 A D 2d 1137; Ackerman v. Perchikoff, 30 A D 2d 672; Sloan v. Glashow, 29 A D 2d 963). Christ, Acting P. J., Rabin, Munder, Martuscello and Benjamin, JJ., concur.

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In a 'negligence action to recover damages for personal injuries, which action was dismissed as abandoned (CPLR 3404), plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County, dated August 20, 1969, as, after granting renewal of her prior motion for leave to file a statement of readiness nunc pro tunc, denied said prior motion and also her motion to vacate the dismissal of the action. Order reversed insofar as appealed from, on the law and the facts, with one bill of $10 costs jointly against respondents filing separate briefs, and motions for leave to file a statement of readiness and to vacate the dismissal of the action granted. In our opinion, the record sufficiently establishes that plaintiff never intended to abandon the action. Absent demonstrated prejudice to defendants, it was an improvident exercise of discretion to deny the motion (cf. Marco v. Sachs, 10 N Y 2d 542; Tactuk v. Freiberg, 24 A D 2d 503; Boyle v. Krebs & Schulz Motors, 18 A D 2d 1010; Blau v. Levine, 28 A D 2d 1137; Ackerman v. Perchikoff, 30 A D 2d 672; Sloan v. Glashow, 29 A D 2d 963). Christ, Acting P. J., Rabin, Munder, Martuscello and Benjamin, JJ., concur.

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Bluebook (online)

33 A.D.2d 1042, 308 N.Y.S.2d 818, 1970 N.Y. App. Div. LEXIS 5424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/briskman-v-kushner-nyappdiv-1970.

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