Gelb v. Mazzeo

5 A.D.2d 855, 170 N.Y.S.2d 1005, 1958 N.Y. App. Div. LEXIS 6960

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 13, 1958
• Status: Published

Opinion

Order unanimously reversed and the proceeding-remanded for a hearing on said application. No opinion. The issues presented by the record before the lower court could not be decided upon the petition, reply and documentary evidence. The appellant was entitled to a hearing. “ It is only when the record conclusively demonstrates the falsity of the allegations and there is no reasonable probability at all that defendant’s averments are true that a hearing will be denied”. (People v. Guariglia, 303 N. Y. 338, 343.)

Concur—Rabin, J. P., Yalente, McNally, Stevens and Bastow, JJ.