Di Bitetto v. Sussman

279 A.D. 1033, 112 N.Y.S.2d 356, 1952 N.Y. App. Div. LEXIS 5710

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 1952
• Status: Published

Opinion

The statute is to be interpreted as consistent with Federal court decisions; and accordingly the action is for damages and not for a penalty. (United States v. Harris, 89 F. Supp. 537; Porter v. Montgomery, 163 F. 2d 211; Fields v. Washington, 173 F. 2d 701.) It follows that summary judgment is not prohibited by subdivision 3 of rule 113 of the Rules of Civil Practice, Von Doemming v. Cross (81 N. Y. S. 2d 35); Wachtel v. Schelberg (186 Misc. 406) and several other cases similarly decided, did not consider the Federal court interpretations of the statute. The papers establish that the granting of the motion for summary judgment was not proper inasmuch as appellant is entitled to prove that the violation was not willful. Johnston, Acting P. J., Adel, Wenzel, MaeCrate and Schmidt, JJ., concur.