Davila v. Bower

Appellate Division of the Supreme Court of New York

Davila v. Bower

20 A.D.2d 694, 246 N.Y.S.2d 637, 1964 N.Y. App. Div. LEXIS 4413

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

DecidedFebruary 18, 1964

StatusPublished

This text of 20 A.D.2d 694 (Davila v. Bower) 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

Davila v. Bower, 20 A.D.2d 694, 246 N.Y.S.2d 637, 1964 N.Y. App. Div. LEXIS 4413 (N.Y. Ct. App. 1964).

Pincite

Opinion

Order, entered on November 8, 1963, unanimously affirmed, on the law and the facts, with $20 costs and disbursements to plaintiff-respondent. In effect, defendants appeal from so much of the order as directed that upon completion of the required pretrial procedures the case should be restored to the General Jury Calendar of the Supreme Court, Bronx County, and not transferred to the appropriate Tort Calendar, as sought by defendants. The complaint alleges malpractice by defendants — attorneys in the handling of certain litigation. Defendants, claiming the action lies in tort, have interposed the three-year Statute of Limitations as a separate defense. In denying the major relief sought b; defendants Special Term held that the action is based upon an alleged breach of contract of professional employment. In affirming we need not and therefore do not adopt this holding. This motion was brought after September 1, 1963, when the present Rules of the Supreme Court for New York and Bronx Counties went into effect. Rule T of Part 1 (subds. 1, 2) provides for General Calendars and Personal Injury Calendars. The latter calendars comprise personal injury and death actions arising out of negligence, malpractice or assault. Whether sounding in tort or contract, the instant action is not one for personal injury or death, and therefore properly belongs where assigned by Special Term — on the General Jury Calendar. Concur — Botein, P. J., Tálente, Stevens, Eager and Steuer, JJ.

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Order, entered on November 8, 1963, unanimously affirmed, on the law and the facts, with $20 costs and disbursements to plaintiff-respondent. In effect, defendants appeal from so much of the order as directed that upon completion of the required pretrial procedures the case should be restored to the General Jury Calendar of the Supreme Court, Bronx County, and not transferred to the appropriate Tort Calendar, as sought by defendants. The complaint alleges malpractice by defendants — attorneys in the handling of certain litigation. Defendants, claiming the action lies in tort, have interposed the three-year Statute of Limitations as a separate defense. In denying the major relief sought b; defendants Special Term held that the action is based upon an alleged breach of contract of professional employment. In affirming we need not and therefore do not adopt this holding. This motion was brought after September 1, 1963, when the present Rules of the Supreme Court for New York and Bronx Counties went into effect. Rule T of Part 1 (subds. 1, 2) provides for General Calendars and Personal Injury Calendars. The latter calendars comprise personal injury and death actions arising out of negligence, malpractice or assault. Whether sounding in tort or contract, the instant action is not one for personal injury or death, and therefore properly belongs where assigned by Special Term — on the General Jury Calendar. Concur — Botein, P. J., Tálente, Stevens, Eager and Steuer, JJ.

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Bluebook (online)

20 A.D.2d 694, 246 N.Y.S.2d 637, 1964 N.Y. App. Div. LEXIS 4413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davila-v-bower-nyappdiv-1964.