Marzullo v. General Motors Corp.

34 A.D.3d 540, 825 N.Y.S.2d 492

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2006
• Status: Published

Opinion

In an action to recover damages pursuant to General Business Law § 198-a, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated December 2, 2005, which granted the motion of the defendant General Motors Corporation to deem her application for an award of a statutory attorney’s fee abandoned pursuant to 22 NYCRR 202.48 on the ground that she had failed to settle an order and judgment within 60 days, and denied her cross motion for an extension of time to settle an order and judgment.

Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, the motion is denied, and the cross motion is granted; and it is further,

Ordered that the matter is remitted to the Supreme Court, Dutchess County, for further proceedings in accordance herewith.

The Supreme Court improvidently exercised its discretion in granting the respondent’s motion to deem the plaintiffs application for an award of a statutory attorney’s fee abandoned pursuant to 22 NYCRR 202.48 on the ground that the plaintiff failed to settle an order and judgment within 60 days. The plaintiff set forth a valid excuse for the short delay, the plaintiff’s actions were devoid of any intent to abandon her claim, and the record evinces a lack of prejudice to the respondent (see CPLR 2005; Lawton v Lawton, 239 AD2d 866 [1997]; Parisi v McElhatton, 209 AD2d 495 [1994]; Levine v Levine, 179 AD2d 625 [1992]). Schmidt, J.P., Ritter, Mastro, Fisher and Dillon, JJ., concur.