Hunting Supply Corp. v. Febrey

Appellate Division of the Supreme Court of New York

Hunting Supply Corp. v. Febrey

22 A.D.2d 1010, 254 N.Y.S.2d 758, 1964 N.Y. App. Div. LEXIS 2600

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

DecidedDecember 10, 1964

StatusPublished

Cited by1 cases

This text of 22 A.D.2d 1010 (Hunting Supply Corp. v. Febrey) 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

Hunting Supply Corp. v. Febrey, 22 A.D.2d 1010, 254 N.Y.S.2d 758, 1964 N.Y. App. Div. LEXIS 2600 (N.Y. Ct. App. 1964).

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Opinion

Order unanimously reversed, without costs of this appeal to either party, and motion denied, without costs, and without prejudice to the right of the defendant to move to dismiss for failure to prosecute. Memorandum: There are questions of fact which require determination. Therefore it was error to grant summary judgment. It is significant that the defendant has interposed a counterclaim for an amount in excess of the plaintiff’s claim to which there is no reply. Thus the allegations of the counterclaim are deemed admitted. Where there is a legally sufficient counterclaim for an amount in excess of the amount demanded in the complaint the plaintiff’s motion for summary judgment must be denied. (Illinois McGraw Elec. Co. v. John J. Walters Inc., 7 N Y 2d 874; Treacy v. Melrose Paper Stock Co., 269 N. Y. 155; Hellmuth v. Brandin, 3 A D 2d 997.) Special Term quite properly treated the papers of the defendant in opposition to the motion not as a cross motion to dismiss the complaint for failure to prosecute but rather as a defense of laches to the motion itself. The conclusion herein [1011]*1011reached is without prejudice to the defendant to move to dismiss the complaint for failure to prosecute upon proper papers if so advised. (Appeal from an order of Jefferson Special Term granting plaintiff’s motion for summary judgment.) Present — Williams, P. J., Goldman, Henry, Noonan and Del Vecchio, JJ.

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Order unanimously reversed, without costs of this appeal to either party, and motion denied, without costs, and without prejudice to the right of the defendant to move to dismiss for failure to prosecute. Memorandum: There are questions of fact which require determination. Therefore it was error to grant summary judgment. It is significant that the defendant has interposed a counterclaim for an amount in excess of the plaintiff’s claim to which there is no reply. Thus the allegations of the counterclaim are deemed admitted. Where there is a legally sufficient counterclaim for an amount in excess of the amount demanded in the complaint the plaintiff’s motion for summary judgment must be denied. (Illinois McGraw Elec. Co. v. John J. Walters Inc., 7 N Y 2d 874; Treacy v. Melrose Paper Stock Co., 269 N. Y. 155; Hellmuth v. Brandin, 3 A D 2d 997.) Special Term quite properly treated the papers of the defendant in opposition to the motion not as a cross motion to dismiss the complaint for failure to prosecute but rather as a defense of laches to the motion itself. The conclusion herein [1011]*1011reached is without prejudice to the defendant to move to dismiss the complaint for failure to prosecute upon proper papers if so advised. (Appeal from an order of Jefferson Special Term granting plaintiff’s motion for summary judgment.) Present — Williams, P. J., Goldman, Henry, Noonan and Del Vecchio, JJ.

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Bluebook (online)

22 A.D.2d 1010, 254 N.Y.S.2d 758, 1964 N.Y. App. Div. LEXIS 2600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunting-supply-corp-v-febrey-nyappdiv-1964.

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