Magaletti v. Trapani

Appellate Division of the Supreme Court of New York

Magaletti v. Trapani

10 A.D.2d 883, 200 N.Y.S.2d 842, 1960 N.Y. App. Div. LEXIS 10508

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

DecidedApril 25, 1960

StatusPublished

This text of 10 A.D.2d 883 (Magaletti v. Trapani) 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

Magaletti v. Trapani, 10 A.D.2d 883, 200 N.Y.S.2d 842, 1960 N.Y. App. Div. LEXIS 10508 (N.Y. Ct. App. 1960).

Pincite

Opinion

-In an action to recover a real estate broker’s commission, defendants appeal from an order of the City Court of White Plains, dated February 16, 1960, granting their motion to dismiss the complaint for failure to prosecute, unless a note of issue is filed by said date (Civ. Prac. Act, § 181; Rules Civ. Prae., rule 156). Order modified by striking from the ordering paragraph the proviso as to the filing of the note of issue. As so modified, order affirmed, with $10 costs and disbursements. Upon the return of the motion to dismiss, plaintiff failed to submit any papers in opposition, notwithstanding the requirements for a demonstration that the delay was not unreasonable and that the action had merits. Hence, it was an improvident exercise of discretion for the court to withhold the unconditional dismissal of the complaint. (See Tripp, Guide to Motion Practice, 1958 Sup., pp. 13-14.) Nolan, P. J., Beldock, Ughetta, Pette and Brennan, JJ., concur.

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-In an action to recover a real estate broker’s commission, defendants appeal from an order of the City Court of White Plains, dated February 16, 1960, granting their motion to dismiss the complaint for failure to prosecute, unless a note of issue is filed by said date (Civ. Prac. Act, § 181; Rules Civ. Prae., rule 156). Order modified by striking from the ordering paragraph the proviso as to the filing of the note of issue. As so modified, order affirmed, with $10 costs and disbursements. Upon the return of the motion to dismiss, plaintiff failed to submit any papers in opposition, notwithstanding the requirements for a demonstration that the delay was not unreasonable and that the action had merits. Hence, it was an improvident exercise of discretion for the court to withhold the unconditional dismissal of the complaint. (See Tripp, Guide to Motion Practice, 1958 Sup., pp. 13-14.) Nolan, P. J., Beldock, Ughetta, Pette and Brennan, JJ., concur.

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Bluebook (online)

10 A.D.2d 883, 200 N.Y.S.2d 842, 1960 N.Y. App. Div. LEXIS 10508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/magaletti-v-trapani-nyappdiv-1960.