Hoffman v. Cafariella

Appellate Division of the Supreme Court of New York

Hoffman v. Cafariella

20 A.D.2d 524, 245 N.Y.S.2d 203, 1963 N.Y. App. Div. LEXIS 2753

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

DecidedDecember 10, 1963

StatusPublished

This text of 20 A.D.2d 524 (Hoffman v. Cafariella) 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

Hoffman v. Cafariella, 20 A.D.2d 524, 245 N.Y.S.2d 203, 1963 N.Y. App. Div. LEXIS 2753 (N.Y. Ct. App. 1963).

Pincite

Opinion

Order, entered on July 18, 1963, denying defendant’s motion to dismiss goods sold and delivered action for failure to prosecute, unanimously reversed on the law, the facts, and in the exercise of discretion, with $20 coste and disbursements to appellant, and the motion granted, with $10 costs. Plaintiff assignee for the benefit of creditors began this action in June, 1955, seeking recovery of $1,009.89 for goods sold and delivered by assignor to defendant [525]*525between August 1, 1954 and March 23, 1955. Issue was joined August 15, 1955. Defendant asserted a counterclaim for $650 and in effect admitted liability for the remainder. An examination of defendant was conducted, not completed, and was adjourned from time to time from December, 1955 to September, 1956. From that time until service of a note of issue by plaintiff on May 17, 1963, a period of six years and seven months, no action was taken. Defendant’s attorney avers that his former partner who handled the case no longer recollects the facts and the firm has been dissolved since 1958. Defendant’s attorney retained the files and there was a tacit understanding he would continue as successor of the firm. He asserts that the books, records, and witnesses having knowledge of the matter are now unavailable. Special Term held that though the delay was unwarranted, defendant waived his right to object thereto by marking the ease ready for trial, but the circumstances for such calendar response are obscure and disputed. The action is stale and the policy against such stale claims outweighs any impropriety which may have occurred by falsely answering the calendar. A period of six years and seven months without activity constitutes abandonment and the action should have been dismissed even though a valid claim for at least $359.89 apparently existed (see Sortino v. Fisher, 20 A D 2d 25). Concur — Breitel, J. P., Rabin, Valente, Stevens and Bergan, JJ.

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Order, entered on July 18, 1963, denying defendant’s motion to dismiss goods sold and delivered action for failure to prosecute, unanimously reversed on the law, the facts, and in the exercise of discretion, with $20 coste and disbursements to appellant, and the motion granted, with $10 costs. Plaintiff assignee for the benefit of creditors began this action in June, 1955, seeking recovery of $1,009.89 for goods sold and delivered by assignor to defendant [525]*525between August 1, 1954 and March 23, 1955. Issue was joined August 15, 1955. Defendant asserted a counterclaim for $650 and in effect admitted liability for the remainder. An examination of defendant was conducted, not completed, and was adjourned from time to time from December, 1955 to September, 1956. From that time until service of a note of issue by plaintiff on May 17, 1963, a period of six years and seven months, no action was taken. Defendant’s attorney avers that his former partner who handled the case no longer recollects the facts and the firm has been dissolved since 1958. Defendant’s attorney retained the files and there was a tacit understanding he would continue as successor of the firm. He asserts that the books, records, and witnesses having knowledge of the matter are now unavailable. Special Term held that though the delay was unwarranted, defendant waived his right to object thereto by marking the ease ready for trial, but the circumstances for such calendar response are obscure and disputed. The action is stale and the policy against such stale claims outweighs any impropriety which may have occurred by falsely answering the calendar. A period of six years and seven months without activity constitutes abandonment and the action should have been dismissed even though a valid claim for at least $359.89 apparently existed (see Sortino v. Fisher, 20 A D 2d 25). Concur — Breitel, J. P., Rabin, Valente, Stevens and Bergan, JJ.

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Bluebook (online)

20 A.D.2d 524, 245 N.Y.S.2d 203, 1963 N.Y. App. Div. LEXIS 2753, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoffman-v-cafariella-nyappdiv-1963.