Lang v. New York Central Railroad

Appellate Division of the Supreme Court of New York

Lang v. New York Central Railroad

4 A.D.2d 926, 166 N.Y.S.2d 804, 1957 N.Y. App. Div. LEXIS 4333

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

DecidedOctober 19, 1957

StatusPublished

This text of 4 A.D.2d 926 (Lang v. New York Central Railroad) 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

Lang v. New York Central Railroad, 4 A.D.2d 926, 166 N.Y.S.2d 804, 1957 N.Y. App. Div. LEXIS 4333 (N.Y. Ct. App. 1957).

Pincite

Opinion

Appeal from an order of the Supreme Court, Special Term, Albany County, which granted, upon conditions, plaintiff-respondent’s motion to be relieved from an order of preclusion which became effective upon her failure to serve a bill of particulars within the time specified in such order. The application was first denied but thereafter granted upon the reargument or renewal of the application which the Special Term in a reasonable exercise of its discretion permitted, upon the presentation of more detailed proof, including an affidavit of the attorney of record, whose previous failure to present an affidavit had been remarked upon by the Special Term in its initial denial of the application. We find in the determination of the motion proper no' abuse of discretion. The experienced Justice who heard the application was warranted in finding in the combination of a number of unusual circumstances contributing to cause the default sufficient grounds for relieving respondent from the original order of preclusion. In this somewhat exceptional factual situation, the Special Term was not bound to follow the stricter practice contemplated by our decision in Paris v. Poticha (1 A D 2d 277), although in the absence of exceptional circumstances that practice should be followed. Order unanimously affirmed, with $10 costs. Present — Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ.

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Appeal from an order of the Supreme Court, Special Term, Albany County, which granted, upon conditions, plaintiff-respondent’s motion to be relieved from an order of preclusion which became effective upon her failure to serve a bill of particulars within the time specified in such order. The application was first denied but thereafter granted upon the reargument or renewal of the application which the Special Term in a reasonable exercise of its discretion permitted, upon the presentation of more detailed proof, including an affidavit of the attorney of record, whose previous failure to present an affidavit had been remarked upon by the Special Term in its initial denial of the application. We find in the determination of the motion proper no' abuse of discretion. The experienced Justice who heard the application was warranted in finding in the combination of a number of unusual circumstances contributing to cause the default sufficient grounds for relieving respondent from the original order of preclusion. In this somewhat exceptional factual situation, the Special Term was not bound to follow the stricter practice contemplated by our decision in Paris v. Poticha (1 A D 2d 277), although in the absence of exceptional circumstances that practice should be followed. Order unanimously affirmed, with $10 costs. Present — Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ.

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Bluebook (online)

4 A.D.2d 926, 166 N.Y.S.2d 804, 1957 N.Y. App. Div. LEXIS 4333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lang-v-new-york-central-railroad-nyappdiv-1957.