Kantz v. Melnicki

Appellate Division of the Supreme Court of New York

Kantz v. Melnicki

38 A.D.2d 695, 328 N.Y.S.2d 816, 1972 N.Y. App. Div. LEXIS 5506

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

DecidedJanuary 25, 1972

StatusPublished

This text of 38 A.D.2d 695 (Kantz v. Melnicki) 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

Kantz v. Melnicki, 38 A.D.2d 695, 328 N.Y.S.2d 816, 1972 N.Y. App. Div. LEXIS 5506 (N.Y. Ct. App. 1972).

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Opinion

Order, Supreme Court, New York County, entered on June 17, 1971, affirmed, without costs and without disbursements. No opinion. Concur—Stevens, P. J., Kupferman, Murphy and Capozzoli, JJ.; McGivern, J., dissents in the following memorandum: Although the conduct of appellant and counsel is almost wholly inexplicable, I think it sufficient if we but refuse to vacate the defendant’s default in respect of the examination before trial. And, although I am alive to the firm policy of this court not to condone neglect on the part of counsel, I think an uncontested assessment, resulting in the substantial sum of over $155,000, could, in a provident exercise of discretion, be vacated on terms significant enough to serve as a caution to future parties and their attorneys, (Keenan v. Waring, 12 A D 2d 601.) Thus, I would vacate the default on the assessment of damages, upon tender and payment of $250 additional costs, together with payment of the costs and disbursements taxable to date, including this appeal, to be charged to and payable by the defendant and his attorney.

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Order, Supreme Court, New York County, entered on June 17, 1971, affirmed, without costs and without disbursements. No opinion. Concur—Stevens, P. J., Kupferman, Murphy and Capozzoli, JJ.; McGivern, J., dissents in the following memorandum: Although the conduct of appellant and counsel is almost wholly inexplicable, I think it sufficient if we but refuse to vacate the defendant’s default in respect of the examination before trial. And, although I am alive to the firm policy of this court not to condone neglect on the part of counsel, I think an uncontested assessment, resulting in the substantial sum of over $155,000, could, in a provident exercise of discretion, be vacated on terms significant enough to serve as a caution to future parties and their attorneys, (Keenan v. Waring, 12 A D 2d 601.) Thus, I would vacate the default on the assessment of damages, upon tender and payment of $250 additional costs, together with payment of the costs and disbursements taxable to date, including this appeal, to be charged to and payable by the defendant and his attorney.

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Bluebook (online)

38 A.D.2d 695, 328 N.Y.S.2d 816, 1972 N.Y. App. Div. LEXIS 5506, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kantz-v-melnicki-nyappdiv-1972.