Butler v. Caldwell & Cook

Appellate Division of the Supreme Court of New York

Butler v. Caldwell & Cook

142 A.D.2d 962, 530 N.Y.S.2d 729, 1988 N.Y. App. Div. LEXIS 14991

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

DecidedJuly 7, 1988

StatusPublished

This text of 142 A.D.2d 962 (Butler v. Caldwell & Cook) 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.

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Butler v. Caldwell & Cook, 142 A.D.2d 962, 530 N.Y.S.2d 729, 1988 N.Y. App. Div. LEXIS 14991 (N.Y. Ct. App. 1988).

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Order affirmed without costs. Memorandum: Plaintiffs’ motion for leave to replead was properly denied. By order dated July 8, 1985, Special Term dismissed with prejudice seven of plaintiffs’ causes of action, while the remaining three causes of action were dismissed with permission to move to replead. We affirmed Special Term’s order on July 11, 1986 (Butler v Caldwell & Cook, 122 AD2d 559). Plaintiffs moved on February 16, 1987 and February 28, 1987, respectively, for leave to replead the conditionally dismissed causes of action. Because of plaintiffs’ unreasonable delay, Special Term did not abuse its discretion in denying plaintiffs’ motion (Beuschel v Malm, 114 AD2d 569). While the six-month period set forth in CPLR 205 (a) is inapplicable, we see no reason why a party whose claim was conditionally dismissed should be granted, absent compelling circumstances, a longer period to replead than one whose action was dismissed.

All concur, except Callahan, J. P., and Boomer, J., who dissent and vote to reverse and grant the motion, in the following memorandum.

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Order affirmed without costs. Memorandum: Plaintiffs’ motion for leave to replead was properly denied. By order dated July 8, 1985, Special Term dismissed with prejudice seven of plaintiffs’ causes of action, while the remaining three causes of action were dismissed with permission to move to replead. We affirmed Special Term’s order on July 11, 1986 (Butler v Caldwell & Cook, 122 AD2d 559). Plaintiffs moved on February 16, 1987 and February 28, 1987, respectively, for leave to replead the conditionally dismissed causes of action. Because of plaintiffs’ unreasonable delay, Special Term did not abuse its discretion in denying plaintiffs’ motion (Beuschel v Malm, 114 AD2d 569). While the six-month period set forth in CPLR 205 (a) is inapplicable, we see no reason why a party whose claim was conditionally dismissed should be granted, absent compelling circumstances, a longer period to replead than one whose action was dismissed.

All concur, except Callahan, J. P., and Boomer, J., who dissent and vote to reverse and grant the motion, in the following memorandum.

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Bluebook (online)

142 A.D.2d 962, 530 N.Y.S.2d 729, 1988 N.Y. App. Div. LEXIS 14991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butler-v-caldwell-cook-nyappdiv-1988.

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