Lopez v. Vesce

Appellate Division of the Supreme Court of New York

Lopez v. Vesce

4 A.D.2d 1032, 168 N.Y.S.2d 742, 1957 N.Y. App. Div. LEXIS 3594

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

DecidedDecember 17, 1957

StatusPublished

This text of 4 A.D.2d 1032 (Lopez v. Vesce) 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

Lopez v. Vesce, 4 A.D.2d 1032, 168 N.Y.S.2d 742, 1957 N.Y. App. Div. LEXIS 3594 (N.Y. Ct. App. 1957).

Pincite

Opinion

This personal injury action in Bronx County, arising from an accident in February, 1952, was commenced by the service of a summons in November, 1953. A notice of appearance was served in February, 1954 and, no complaint being served, defendants’ motion to dismiss the action, made a year later, was granted by default at Special Term on March 30, 1955. Notwithstanding that order of dismissal, plaintiff served a note of issue for the April, 1955 Term, but because of the order of dismissal, it was marked off the calendar and a judgment of dismissal was entered on April 27, 1955. Nevertheless, eight months later, a substituted attorney for plaintiff served a complaint on December 10 which was returned. In May, 1956 plaintiff’s motion to restore the case to the calendar was denied and in July of the same year a further motion by plaintiff to vacate the order and judgment of dismissal was denied, without prejudice. The order appealed from was entered April 30, 1957. It vacated the order of dismissal made two years before, and transferred the cause to the City Court. The protracted and long-continued failure to follow the rules governing the course of litigation requires that the order of dismissal stand. (Goldfarb v. Mallín, 3 A D 2d 735.) Order reversed and motion denied, with $20 costs. Concur — Breitel, J. P., Botein, Valente, Bergan and Bastow, JJ.

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This personal injury action in Bronx County, arising from an accident in February, 1952, was commenced by the service of a summons in November, 1953. A notice of appearance was served in February, 1954 and, no complaint being served, defendants’ motion to dismiss the action, made a year later, was granted by default at Special Term on March 30, 1955. Notwithstanding that order of dismissal, plaintiff served a note of issue for the April, 1955 Term, but because of the order of dismissal, it was marked off the calendar and a judgment of dismissal was entered on April 27, 1955. Nevertheless, eight months later, a substituted attorney for plaintiff served a complaint on December 10 which was returned. In May, 1956 plaintiff’s motion to restore the case to the calendar was denied and in July of the same year a further motion by plaintiff to vacate the order and judgment of dismissal was denied, without prejudice. The order appealed from was entered April 30, 1957. It vacated the order of dismissal made two years before, and transferred the cause to the City Court. The protracted and long-continued failure to follow the rules governing the course of litigation requires that the order of dismissal stand. (Goldfarb v. Mallín, 3 A D 2d 735.) Order reversed and motion denied, with $20 costs. Concur — Breitel, J. P., Botein, Valente, Bergan and Bastow, JJ.

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Bluebook (online)

4 A.D.2d 1032, 168 N.Y.S.2d 742, 1957 N.Y. App. Div. LEXIS 3594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-v-vesce-nyappdiv-1957.