Litwin v. Grand Central Apartments Inc.

Appellate Division of the Supreme Court of New York

Litwin v. Grand Central Apartments Inc.

14 A.D.2d 913, 221 N.Y.S.2d 562, 1961 N.Y. App. Div. LEXIS 7804

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

DecidedNovember 20, 1961

StatusPublished

This text of 14 A.D.2d 913 (Litwin v. Grand Central Apartments Inc.) 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

Litwin v. Grand Central Apartments Inc., 14 A.D.2d 913, 221 N.Y.S.2d 562, 1961 N.Y. App. Div. LEXIS 7804 (N.Y. Ct. App. 1961).

Pincite

Opinion

Issue was joined on April 26, 1957. Thereafter, on December 9, 1957, plaintiffs filed a note of issue. Following a pretrial hearing on March 5, 1959, plaintiffs served a notice to examine the defendant before trial. On defendant’s motion an order was made on April 1, 1959 striking the case from the calendar and directing the defendant to serve a copy thereof on the Calendar Clerk. Both parties held examinations before trial on June 5, 1959. On April 2, 1960 an order was entered, pursuant to subdivision 2 of rule 302 of the Rules of Civil Practice, dismissing the complaint for failure to prosecute. By motion returnable November 28, 1960, plaintiffs moved to vacate their default and to restore the action to the calendar. It is incumbent upon the movant to show a meritorious cause of action and a reasonable excuse for the delay (Walsh v. Ben Riley’s Arrowhead Inn, 2 A D 2d 714; Rules App. Div. [2d Dept.], Special Rule, as amd. eff. Nov. 18, 1957; cf. Nassau County Supreme Court Rules, rule 2, subd. [e]), which, in our opinion, the movant failed to [914]*914establish. Under such circumstances, the granting of the motion was an improvident exercise of discretion. Nolan, P. J., Ughetta and Brennan, JJ., concur; Beldock and Pette, JJ., dissent and vote to affirm on the ground that under til the circumstances here it may not be said that the Justice at Special Term abused his discretion in granting the motion and restoring the action to the calendar.

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Issue was joined on April 26, 1957. Thereafter, on December 9, 1957, plaintiffs filed a note of issue. Following a pretrial hearing on March 5, 1959, plaintiffs served a notice to examine the defendant before trial. On defendant’s motion an order was made on April 1, 1959 striking the case from the calendar and directing the defendant to serve a copy thereof on the Calendar Clerk. Both parties held examinations before trial on June 5, 1959. On April 2, 1960 an order was entered, pursuant to subdivision 2 of rule 302 of the Rules of Civil Practice, dismissing the complaint for failure to prosecute. By motion returnable November 28, 1960, plaintiffs moved to vacate their default and to restore the action to the calendar. It is incumbent upon the movant to show a meritorious cause of action and a reasonable excuse for the delay (Walsh v. Ben Riley’s Arrowhead Inn, 2 A D 2d 714; Rules App. Div. [2d Dept.], Special Rule, as amd. eff. Nov. 18, 1957; cf. Nassau County Supreme Court Rules, rule 2, subd. [e]), which, in our opinion, the movant failed to [914]*914establish. Under such circumstances, the granting of the motion was an improvident exercise of discretion. Nolan, P. J., Ughetta and Brennan, JJ., concur; Beldock and Pette, JJ., dissent and vote to affirm on the ground that under til the circumstances here it may not be said that the Justice at Special Term abused his discretion in granting the motion and restoring the action to the calendar.

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Bluebook (online)

14 A.D.2d 913, 221 N.Y.S.2d 562, 1961 N.Y. App. Div. LEXIS 7804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/litwin-v-grand-central-apartments-inc-nyappdiv-1961.