Jacobs v. Mostow

Appellate Division of the Supreme Court of New York

Jacobs v. Mostow

23 A.D.3d 623, 806 N.Y.S.2d 213

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

DecidedNovember 28, 2005

StatusPublished

Cited by14 cases

This text of 23 A.D.3d 623 (Jacobs v. Mostow) 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

Jacobs v. Mostow, 23 A.D.3d 623, 806 N.Y.S.2d 213 (N.Y. Ct. App. 2005).

Pincite

Opinion

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Winslow, J.), dated December 11, 2003, which, upon an order of the same court dated August 20, 2003, denying his motion, inter alia, to compel further discovery and, sua sponte, quashing certain nonparty subpoenas, dismissed the complaint.

Ordered that the judgment is reversed, on the law, with costs, the complaint is reinstated, so much of the order dated August 20, 2003, as denied that branch of the motion which was to compel further discovery is vacated, the third decretal paragraph of the order dated August 20, 2003, is vacated, and the matter is remitted to the Supreme Court, Nassau County, for a new determination of that branch of the motion which was to compel further discovery.

The Supreme Court erred in dismissing the complaint without notice to the parties and in the absence of an application by the [624]*624defendants for such relief (see Grimes v Kaplin, 305 AD2d 1024 [2003]; Gibbs v Kinsey, 120 AD2d 701 [1986]). The plaintiff was improperly deprived of the opportunity to submit any additional proof he might have in opposition to the dismissal of his complaint on the merits (see Hoeffner v John F. Frank, Inc., 302 AD2d 428, 430 [2003]; Sena v Nationwide Mut. Fire Ins. Co., 198 AD2d 345, 346 [1993]).

Contrary to the plaintiff’s contention, the Supreme Court properly quashed the subpoenas duces tecum directed to Dr. Herschel Williams and attorney Lawrence Tenenbaum (see CPLR 3103). Under the circumstances of this case, we remit the matter to the Supreme Court, Nassau County, for a new determination of that branch of the plaintiffs motion which was to compel further discovery.

The plaintiffs remaining contentions are without merit. H. Miller, J.P., Crane, Goldstein and Skelos, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Winslow, J.), dated December 11, 2003, which, upon an order of the same court dated August 20, 2003, denying his motion, inter alia, to compel further discovery and, sua sponte, quashing certain nonparty subpoenas, dismissed the complaint.

Ordered that the judgment is reversed, on the law, with costs, the complaint is reinstated, so much of the order dated August 20, 2003, as denied that branch of the motion which was to compel further discovery is vacated, the third decretal paragraph of the order dated August 20, 2003, is vacated, and the matter is remitted to the Supreme Court, Nassau County, for a new determination of that branch of the motion which was to compel further discovery.

The Supreme Court erred in dismissing the complaint without notice to the parties and in the absence of an application by the [624]*624defendants for such relief (see Grimes v Kaplin, 305 AD2d 1024 [2003]; Gibbs v Kinsey, 120 AD2d 701 [1986]). The plaintiff was improperly deprived of the opportunity to submit any additional proof he might have in opposition to the dismissal of his complaint on the merits (see Hoeffner v John F. Frank, Inc., 302 AD2d 428, 430 [2003]; Sena v Nationwide Mut. Fire Ins. Co., 198 AD2d 345, 346 [1993]).

Contrary to the plaintiff’s contention, the Supreme Court properly quashed the subpoenas duces tecum directed to Dr. Herschel Williams and attorney Lawrence Tenenbaum (see CPLR 3103). Under the circumstances of this case, we remit the matter to the Supreme Court, Nassau County, for a new determination of that branch of the plaintiffs motion which was to compel further discovery.

The plaintiffs remaining contentions are without merit. H. Miller, J.P., Crane, Goldstein and Skelos, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

23 A.D.3d 623, 806 N.Y.S.2d 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacobs-v-mostow-nyappdiv-2005.

Opinion

Related

Cite This Page — Counsel Stack