Calderon v. Steele

Appellate Division of the Supreme Court of New York

Calderon v. Steele

41 A.D.2d 736, 341 N.Y.S.2d 194, 1973 N.Y. App. Div. LEXIS 4967

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

DecidedMarch 5, 1973

StatusPublished

Cited by2 cases

This text of 41 A.D.2d 736 (Calderon v. Steele) 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

Calderon v. Steele, 41 A.D.2d 736, 341 N.Y.S.2d 194, 1973 N.Y. App. Div. LEXIS 4967 (N.Y. Ct. App. 1973).

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Opinion

In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Queens County, dated August 23, 1972, which denied his motion to dismiss the action for unreasonable neglect in its prosecution. Order affirmed, on condition that plaintiff’s attorney, personally pay $250 to defendant within 20 days after entry of the order to be made hereon. Other than the said $250, no costs or disbursements are awarded. Special Term incorrectly held that defendant showed acquiescence in plaintiff’s delay, by filing a jury demand subsequent1 to the latter’s filing of a note of issue. Rather than acquiescence, it appears that defendant was only protecting himself against the possibility that he might be deemed to have waived a jury trial if he did not file a jury demand within 15 days after service of the note of issue (CPLR 4102). Nevertheless, it is our opinion that the motion to dismiss the action was properly denied. The note of issue was filed before the motion was made (Harrison v. Lagerwall, 39 A D 2d 759; Giancone v. City of New York, 29 A D 2d 756). Moreover, it is strong public policy that actions be disposed of on the merits (Moran v. Rynar, 39 A D 2d 718; Springer v. Marangio, 38 A D 2d 852). The record establishes that plaintiff’s delay was not willful or with intent to abandon the action, but rather the result of neglect on the part of his attorney. We have held that an attorney’s neglect should not deprive his client of his day in court (Swan v. Howes, 36 A D 2d 643). However, in view of the neglect of plaintiff’s attorney in the prosecution of the action, we think it proper to require the attorney personally to pay $250 costs to defendant (Moran v. Ryner, supra). Martuscello, Gulotta, Christ and Benjamin, JJ., concur; Munder, Acting P. J., dissents and votes to reverse the order and to grant defendant’s motion.

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In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Queens County, dated August 23, 1972, which denied his motion to dismiss the action for unreasonable neglect in its prosecution. Order affirmed, on condition that plaintiff’s attorney, personally pay $250 to defendant within 20 days after entry of the order to be made hereon. Other than the said $250, no costs or disbursements are awarded. Special Term incorrectly held that defendant showed acquiescence in plaintiff’s delay, by filing a jury demand subsequent1 to the latter’s filing of a note of issue. Rather than acquiescence, it appears that defendant was only protecting himself against the possibility that he might be deemed to have waived a jury trial if he did not file a jury demand within 15 days after service of the note of issue (CPLR 4102). Nevertheless, it is our opinion that the motion to dismiss the action was properly denied. The note of issue was filed before the motion was made (Harrison v. Lagerwall, 39 A D 2d 759; Giancone v. City of New York, 29 A D 2d 756). Moreover, it is strong public policy that actions be disposed of on the merits (Moran v. Rynar, 39 A D 2d 718; Springer v. Marangio, 38 A D 2d 852). The record establishes that plaintiff’s delay was not willful or with intent to abandon the action, but rather the result of neglect on the part of his attorney. We have held that an attorney’s neglect should not deprive his client of his day in court (Swan v. Howes, 36 A D 2d 643). However, in view of the neglect of plaintiff’s attorney in the prosecution of the action, we think it proper to require the attorney personally to pay $250 costs to defendant (Moran v. Ryner, supra). Martuscello, Gulotta, Christ and Benjamin, JJ., concur; Munder, Acting P. J., dissents and votes to reverse the order and to grant defendant’s motion.

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Bluebook (online)

41 A.D.2d 736, 341 N.Y.S.2d 194, 1973 N.Y. App. Div. LEXIS 4967, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calderon-v-steele-nyappdiv-1973.

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