Copper v. Adams Petroleum Corp.

Appellate Division of the Supreme Court of New York

Copper v. Adams Petroleum Corp.

25 A.D.2d 857, 270 N.Y.S.2d 974, 1966 N.Y. App. Div. LEXIS 4309

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

DecidedMay 9, 1966

StatusPublished

This text of 25 A.D.2d 857 (Copper v. Adams Petroleum Corp.) 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

Copper v. Adams Petroleum Corp., 25 A.D.2d 857, 270 N.Y.S.2d 974, 1966 N.Y. App. Div. LEXIS 4309 (N.Y. Ct. App. 1966).

Pincite

Opinion

In a negligence action to recover damages for injury to property resulting from a fire, plaintiff appeals from an order of the Supreme Court, Queens County, entered May 7, 1965, which denied his motion (1) to vacate a prior severance of the counterclaim of defendants Weeker and Levin and (2) to dismiss said counterclaim or, (3) in the alternative, to direct said defendants to accept a reply to said counterclaim. The severance had been ordered during trial of the action, which trial ended upon declaration of a mistrial. The ground for the severance was plaintiff’s default in serving his reply. Order modified by amending its decretal paragraph so as (1) to grant the motion to the extent of (a) vacating the severance of the counterclaim, (b) directing defendants Weeker and Levin to accept plaintiff’s reply and (e) restoring the counterclaim to the Trial Calendar for trial together with the primary action and (2) otherwise to deny the motion. As so modified, order affirmed, without costs. Plaintiff’s time to serve a reply to the counterclaim is extended until 10 days after entry of the order hereon. In our opinion the record in this ease discloses that the failure of plaintiff to reply to the counterclaim was not willful. Hence, he should be permitted to have his day in court on the issues raised therein.

Brennan, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.

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In a negligence action to recover damages for injury to property resulting from a fire, plaintiff appeals from an order of the Supreme Court, Queens County, entered May 7, 1965, which denied his motion (1) to vacate a prior severance of the counterclaim of defendants Weeker and Levin and (2) to dismiss said counterclaim or, (3) in the alternative, to direct said defendants to accept a reply to said counterclaim. The severance had been ordered during trial of the action, which trial ended upon declaration of a mistrial. The ground for the severance was plaintiff’s default in serving his reply. Order modified by amending its decretal paragraph so as (1) to grant the motion to the extent of (a) vacating the severance of the counterclaim, (b) directing defendants Weeker and Levin to accept plaintiff’s reply and (e) restoring the counterclaim to the Trial Calendar for trial together with the primary action and (2) otherwise to deny the motion. As so modified, order affirmed, without costs. Plaintiff’s time to serve a reply to the counterclaim is extended until 10 days after entry of the order hereon. In our opinion the record in this ease discloses that the failure of plaintiff to reply to the counterclaim was not willful. Hence, he should be permitted to have his day in court on the issues raised therein.

Brennan, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.

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Bluebook (online)

25 A.D.2d 857, 270 N.Y.S.2d 974, 1966 N.Y. App. Div. LEXIS 4309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/copper-v-adams-petroleum-corp-nyappdiv-1966.