Carrasquillo v. City of New York

Appellate Division of the Supreme Court of New York

Carrasquillo v. City of New York

236 A.D.2d 576, 653 N.Y.S.2d 698, 1997 N.Y. App. Div. LEXIS 1561

Appellate Division of the Supreme Court of the State of New York·Decided February 24, 1997·Published·Cited by 1 cases

Opinion

—In an action to recover damages for personal injuries, the [577] plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated January 18, 1996, which granted the defendant Alberto Mezarina’s motion to stay the action pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 USC, Appendix § 501 et seq.).

Ordered that the order is reversed, as a matter of discretion, with costs, and the motion is denied.

The Supreme Court improvidently exercised its discretion in granting the appellant’s motion to stay the action pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 USC, Appendix § 501 et seq.). The motion was supported only by affirmations of counsel claiming that the appellant was in the Air Force and serving in Portugal. Although counsel claims to have spoken personally with the appellant concerning his service, counsel failed to provide an adequate explanation as to why he could not further communicate with the appellant in order for the appellant to participate in his defense. Nor did counsel make any showing that the appellant could not secure leave to attend a trial or present his proof by other means. Accordingly, the motion should have been denied (see, Boone v Lightner, 319 US 561; Tabor v Miller, 389 F2d 645, cert denied sub nom. Stearns v Tabor, 391 US 915; Hackman v Postel, 675 F Supp 1132; Richichi v Grillo, 42 AD2d 875). Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.

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—In an action to recover damages for personal injuries, the [577] plaintiff appeals from an order of the Supreme Court, Queens County (Price, J.), dated January 18, 1996, which granted the defendant Alberto Mezarina’s motion to stay the action pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 USC, Appendix § 501 et seq.).

Ordered that the order is reversed, as a matter of discretion, with costs, and the motion is denied.

The Supreme Court improvidently exercised its discretion in granting the appellant’s motion to stay the action pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 USC, Appendix § 501 et seq.). The motion was supported only by affirmations of counsel claiming that the appellant was in the Air Force and serving in Portugal. Although counsel claims to have spoken personally with the appellant concerning his service, counsel failed to provide an adequate explanation as to why he could not further communicate with the appellant in order for the appellant to participate in his defense. Nor did counsel make any showing that the appellant could not secure leave to attend a trial or present his proof by other means. Accordingly, the motion should have been denied (see, Boone v Lightner, 319 US 561; Tabor v Miller, 389 F2d 645, cert denied sub nom. Stearns v Tabor, 391 US 915; Hackman v Postel, 675 F Supp 1132; Richichi v Grillo, 42 AD2d 875). Rosenblatt, J. P., Copertino, Pizzuto, Krausman and Florio, JJ., concur.

Carrasquillo v. City of New York, 236 A.D.2d 576, 653 N.Y.S.2d 698, 1997 N.Y. App. Div. LEXIS 1561 (N.Y. Ct. App. 1997).

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236 A.D.2d 576 (Carrasquillo v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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