Ferrandino v. Cappelli

Appellate Division of the Supreme Court of New York

Ferrandino v. Cappelli

12 A.D.2d 604, 208 N.Y.S.2d 851, 1960 N.Y. App. Div. LEXIS 6552

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

DecidedDecember 13, 1960

StatusPublished

Cited by2 cases

This text of 12 A.D.2d 604 (Ferrandino v. Cappelli) 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

Ferrandino v. Cappelli, 12 A.D.2d 604, 208 N.Y.S.2d 851, 1960 N.Y. App. Div. LEXIS 6552 (N.Y. Ct. App. 1960).

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Opinion

Order entered on October 2, 1959) dismissing the action for failure to serve a complaint, reversed, on the law, on the facts and in the exercise of discretion, with costs to plaintiffs-appellants, and the motion denied, with $10 costs, with leave to serve a complaint within 20 days after the entry of the order hereon. This action against the record owner of the property was not prosecuted only because it was represented that the true owner was the decedent Carmello Lozito, father of defendant-respondent Lucia Lozito Cappelli. The pendency of the companion action against the estate of said decedent in which the issue of title may be raised by reason of the record title, there being no demonstration of any prejudice thereby adequately excuses the failure to timely serve the complaint. There will be irreparable prejudice to plaintiff since it appears that the Statute of Limitations has run on the claim since the service of the summons. Concur — Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.

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Order entered on October 2, 1959) dismissing the action for failure to serve a complaint, reversed, on the law, on the facts and in the exercise of discretion, with costs to plaintiffs-appellants, and the motion denied, with $10 costs, with leave to serve a complaint within 20 days after the entry of the order hereon. This action against the record owner of the property was not prosecuted only because it was represented that the true owner was the decedent Carmello Lozito, father of defendant-respondent Lucia Lozito Cappelli. The pendency of the companion action against the estate of said decedent in which the issue of title may be raised by reason of the record title, there being no demonstration of any prejudice thereby adequately excuses the failure to timely serve the complaint. There will be irreparable prejudice to plaintiff since it appears that the Statute of Limitations has run on the claim since the service of the summons. Concur — Botein, P. J., Breitel, Valente, McNally and Stevens, JJ.

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Bluebook (online)

12 A.D.2d 604, 208 N.Y.S.2d 851, 1960 N.Y. App. Div. LEXIS 6552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ferrandino-v-cappelli-nyappdiv-1960.

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