Joseph Corn & Son Inc. v. Bernstein

Appellate Division of the Supreme Court of New York

Joseph Corn & Son Inc. v. Bernstein

45 A.D.2d 949, 359 N.Y.S.2d 537, 1974 N.Y. App. Div. LEXIS 4125

Appellate Division of the Supreme Court of the State of New York·Decided September 19, 1974·Published

Opinion

Order, Supreme Court, New York County, entered on April 10, 1974, uanimously reversed, in the exercise of discretion, and the motion to vacate dismissal of the action and restore it to the calendar granted, conditioned on payment by plaintiff-appellant of $250 costs to defendants-respondents within 20 days after service of a copy of the order entered hereon upon it by defendants-respondents, without costs and without disbursements of this appeal. Upon plaintiff-appellant’s failure to comply with the foregoing condition, the order is unanimously affirmed, with $40 costs and disbursements to respondents. The reason for dismissal was nonappearance on the call of the Trial Calendar on a date over five years from joinder of issue and almost seven years after the alleged damage took place. However, we are persuaded to restore by the circumstance of death of plaintiff’s counsel shortly before dismissal of the action. Concur—McGivern, P. J., Markewich, Kupferman, Steuer and Capozzoli, JJ.

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Order, Supreme Court, New York County, entered on April 10, 1974, uanimously reversed, in the exercise of discretion, and the motion to vacate dismissal of the action and restore it to the calendar granted, conditioned on payment by plaintiff-appellant of $250 costs to defendants-respondents within 20 days after service of a copy of the order entered hereon upon it by defendants-respondents, without costs and without disbursements of this appeal. Upon plaintiff-appellant’s failure to comply with the foregoing condition, the order is unanimously affirmed, with $40 costs and disbursements to respondents. The reason for dismissal was nonappearance on the call of the Trial Calendar on a date over five years from joinder of issue and almost seven years after the alleged damage took place. However, we are persuaded to restore by the circumstance of death of plaintiff’s counsel shortly before dismissal of the action. Concur—McGivern, P. J., Markewich, Kupferman, Steuer and Capozzoli, JJ.

Joseph Corn & Son Inc. v. Bernstein, 45 A.D.2d 949, 359 N.Y.S.2d 537, 1974 N.Y. App. Div. LEXIS 4125 (N.Y. Ct. App. 1974).

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45 A.D.2d 949 (Joseph Corn & Son Inc. v. Bernstein) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.