Hahn v. Binder

Appellate Division of the Supreme Court of New York

Hahn v. Binder

33 A.D.2d 903, 307 N.Y.S.2d 775, 1970 N.Y. App. Div. LEXIS 5636

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

DecidedJanuary 29, 1970

StatusPublished

This text of 33 A.D.2d 903 (Hahn v. Binder) 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

Hahn v. Binder, 33 A.D.2d 903, 307 N.Y.S.2d 775, 1970 N.Y. App. Div. LEXIS 5636 (N.Y. Ct. App. 1970).

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Opinion

Order entered August 23, 1968 denying the plaintiffs’ motion to open their default and to restore the cause to the Trial Term Calendar unanimously reversed, on the law, on the facts and in the exercise of discretion, without costs or disbursements. The plaintiffs’ application is remanded to Trial Term, Part I, to “ be heard and determined by the justice who presided in the calendar part at the time the cause was assigned” (See Rules of Supreme Court, New York and Bronx Counties, § 660.5, subd. [c], par. [3], cl. [i], previously numbered rule V, subd. [3], par. [c], el. [i]; 22 NYCRR 660.5[c]'[3] [i]), the movants being directed to submit a further affidavit of merit, and being permitted to present any further affidavits, if so advised. We agreé with the Trial Term that there was a lack of co-operation on the part of the plaintiffs’ attorneys in complying with the rules of the “ blockbuster ” part. The late appearance of counsel on the calendar call not having been willful, the extreme finality of dismissal may not have been justified (Warbett v. Polokoff, 21 A D 2d 771), but resolution of that question shall await consideration of all papers, including any additional affidavits which may be submitted to the justice in the calendar part. Concur — Stevens, P. J., Eager, Markewich, Nunez and Tilzer, JJ.

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Order entered August 23, 1968 denying the plaintiffs’ motion to open their default and to restore the cause to the Trial Term Calendar unanimously reversed, on the law, on the facts and in the exercise of discretion, without costs or disbursements. The plaintiffs’ application is remanded to Trial Term, Part I, to “ be heard and determined by the justice who presided in the calendar part at the time the cause was assigned” (See Rules of Supreme Court, New York and Bronx Counties, § 660.5, subd. [c], par. [3], cl. [i], previously numbered rule V, subd. [3], par. [c], el. [i]; 22 NYCRR 660.5[c]'[3] [i]), the movants being directed to submit a further affidavit of merit, and being permitted to present any further affidavits, if so advised. We agreé with the Trial Term that there was a lack of co-operation on the part of the plaintiffs’ attorneys in complying with the rules of the “ blockbuster ” part. The late appearance of counsel on the calendar call not having been willful, the extreme finality of dismissal may not have been justified (Warbett v. Polokoff, 21 A D 2d 771), but resolution of that question shall await consideration of all papers, including any additional affidavits which may be submitted to the justice in the calendar part. Concur — Stevens, P. J., Eager, Markewich, Nunez and Tilzer, JJ.

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Bluebook (online)

33 A.D.2d 903, 307 N.Y.S.2d 775, 1970 N.Y. App. Div. LEXIS 5636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hahn-v-binder-nyappdiv-1970.