Dame v. Feinman

Appellate Division of the Supreme Court of New York

Dame v. Feinman

134 A.D.2d 477, 521 N.Y.S.2d 400, 1987 N.Y. App. Div. LEXIS 50672

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

DecidedNovember 23, 1987

StatusPublished

This text of 134 A.D.2d 477 (Dame v. Feinman) 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

Dame v. Feinman, 134 A.D.2d 477, 521 N.Y.S.2d 400, 1987 N.Y. App. Div. LEXIS 50672 (N.Y. Ct. App. 1987).

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Opinion

— In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Orange County (Gagliardi, J.), dated September 6, 1985, which denied his motion to restore the action to the Trial Calendar.

Ordered that the order is reversed, with costs, and the matter is remitted to the Supreme Court, Orange County, for findings with respect to the facts concerning the striking of the case from the Trial Calendar, and whether or not the plaintiff made a prior timely and meritorious motion to restore, and for a new determination based thereon.

It is impossible to ascertain, on the record before us, whether the court properly determined that the plaintiff’s restoration motion was untimely in that it was not made within one year of the dismissal of the action from the Trial Calendar. There is evidence that the record subpoenaed by the plaintiff, who is acting pro se, is incomplete and that the plaintiff originally moved to restore the action to the Trial Calendar in July 1984, which motion was thereafter lost or mislaid in the court files.

In view of the lack of any intent to abandon the action and the fact that the plaintiff is proceeding pro se, the matter is [478]*478remitted for a new determination which shall set forth the background facts concerning the striking of the case from the Trial Calendar and a finding of whether or not the plaintiff made a timely and meritorious prior motion to restore. Niehoff, J. P., Weinstein, Eiber and Harwood, JJ., concur.

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— In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Orange County (Gagliardi, J.), dated September 6, 1985, which denied his motion to restore the action to the Trial Calendar.

Ordered that the order is reversed, with costs, and the matter is remitted to the Supreme Court, Orange County, for findings with respect to the facts concerning the striking of the case from the Trial Calendar, and whether or not the plaintiff made a prior timely and meritorious motion to restore, and for a new determination based thereon.

It is impossible to ascertain, on the record before us, whether the court properly determined that the plaintiff’s restoration motion was untimely in that it was not made within one year of the dismissal of the action from the Trial Calendar. There is evidence that the record subpoenaed by the plaintiff, who is acting pro se, is incomplete and that the plaintiff originally moved to restore the action to the Trial Calendar in July 1984, which motion was thereafter lost or mislaid in the court files.

In view of the lack of any intent to abandon the action and the fact that the plaintiff is proceeding pro se, the matter is [478]*478remitted for a new determination which shall set forth the background facts concerning the striking of the case from the Trial Calendar and a finding of whether or not the plaintiff made a timely and meritorious prior motion to restore. Niehoff, J. P., Weinstein, Eiber and Harwood, JJ., concur.

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Bluebook (online)

134 A.D.2d 477, 521 N.Y.S.2d 400, 1987 N.Y. App. Div. LEXIS 50672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dame-v-feinman-nyappdiv-1987.