Dusek v. Higgins

Appellate Division of the Supreme Court of New York

Dusek v. Higgins

40 A.D.2d 849, 337 N.Y.S.2d 727, 1972 N.Y. App. Div. LEXIS 3364

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

DecidedNovember 20, 1972

StatusPublished

This text of 40 A.D.2d 849 (Dusek v. Higgins) 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

Dusek v. Higgins, 40 A.D.2d 849, 337 N.Y.S.2d 727, 1972 N.Y. App. Div. LEXIS 3364 (N.Y. Ct. App. 1972).

Pincite

Opinion

In consolidated actions to recover damages for personal injuries, Joseph Higgins, as defendant in Action No. 1, appeals from two orders of the Supreme Court, Queens County, the first dated December 7, 1971, which granted a motion by John Dusek, as plaintiff in Action No. 1, to restore that action to the Trial Term Calendar, and the second dated March 1, 1972, which denied said defendant’s motion for a rehearing of said motion by Dusek, on new papers. The ease is remitted to Special Term to conduct a hearing at which testimony might be taken on the following matters and issues: (1) Whether Dusek’s counsel who agreed to the settlement of Action No. 1 had express or implied authority to settle that action. (2) Whether the settlement of Action No. 1 was made contingent on the obtaining by Dusek’s counsel of Dusek’s subsequent approval thereof. (3) Whether Higgins has been prejudiced by the delay in Dusek’s motion to vacate the settlement and whether such delay was excusable. (4) The date when the attorneys for defendant Higgins in Action No. 1 ordered a transcript of the official stenographic minutes of the settlement concluded at Trial Term, Part X, on September 25, 1970, and the date when such transcript was delivered to them. The Special Term shall make its written findings concerning the above matters and issues and submit them to this court expeditiously. Pending the receipt thereof, determination of the appeals will be held in abeyance. In our opinion the record does not disclose sufficient facts concerning the above-itemized matters and issues, which we deem. material to a determination of these appeals. Martuscello, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.

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In consolidated actions to recover damages for personal injuries, Joseph Higgins, as defendant in Action No. 1, appeals from two orders of the Supreme Court, Queens County, the first dated December 7, 1971, which granted a motion by John Dusek, as plaintiff in Action No. 1, to restore that action to the Trial Term Calendar, and the second dated March 1, 1972, which denied said defendant’s motion for a rehearing of said motion by Dusek, on new papers. The ease is remitted to Special Term to conduct a hearing at which testimony might be taken on the following matters and issues: (1) Whether Dusek’s counsel who agreed to the settlement of Action No. 1 had express or implied authority to settle that action. (2) Whether the settlement of Action No. 1 was made contingent on the obtaining by Dusek’s counsel of Dusek’s subsequent approval thereof. (3) Whether Higgins has been prejudiced by the delay in Dusek’s motion to vacate the settlement and whether such delay was excusable. (4) The date when the attorneys for defendant Higgins in Action No. 1 ordered a transcript of the official stenographic minutes of the settlement concluded at Trial Term, Part X, on September 25, 1970, and the date when such transcript was delivered to them. The Special Term shall make its written findings concerning the above matters and issues and submit them to this court expeditiously. Pending the receipt thereof, determination of the appeals will be held in abeyance. In our opinion the record does not disclose sufficient facts concerning the above-itemized matters and issues, which we deem. material to a determination of these appeals. Martuscello, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.

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Bluebook (online)

40 A.D.2d 849, 337 N.Y.S.2d 727, 1972 N.Y. App. Div. LEXIS 3364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dusek-v-higgins-nyappdiv-1972.