Moscatiello v. Savarese

Appellate Division of the Supreme Court of New York

Moscatiello v. Savarese

42 A.D.2d 519, 344 N.Y.S.2d 285, 1973 N.Y. App. Div. LEXIS 4227

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

DecidedJune 7, 1973

StatusPublished

Cited by3 cases

This text of 42 A.D.2d 519 (Moscatiello v. Savarese) 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

Moscatiello v. Savarese, 42 A.D.2d 519, 344 N.Y.S.2d 285, 1973 N.Y. App. Div. LEXIS 4227 (N.Y. Ct. App. 1973).

Pincite

Opinion

Order, Supreme Court, Bronx County, entered August 21, 1972, denying plaintiff’s motion to vacate and set aside the dismissal of her action and to restore the same to the Trial Calendar, unanimously reversed, on the law and in the exercise of discretion, and the motion granted, on condition that plaintiff’s attorneys, personally, pay to defendants Mary C. Savarese, Gaetano Tortora, Pasquale Tortora, and Louis Russo the sum of $500 plus the $40 costs and disbursements of this appeal within 20 days after they have been served by said defendants with a copy of the bill of costs to be taxed hereunder. Although we fully appreciate Special Term’s justified annoyance because of counsel’s failure to appear for trial on several occasions, we nevertheless believe that, upon the record before us, the penalty imposed was unduly harsh. The final default"does not appear to have been willful; and we find no indication of any intention by plaintiff to abandon the action or of undue prejudice to defendants if the requested relief is granted. Accordingly, under the circumstances here presented, we conclude that plaintiff should not be required to suffer the consequences of her attorneys’ conduct and that the imposition of the above costs upon offending counsel personally is a more appropriate penalty. Concur — Stevens, P. J., Nunez, Kupferman, Murphy and Lane, JJ.

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Order, Supreme Court, Bronx County, entered August 21, 1972, denying plaintiff’s motion to vacate and set aside the dismissal of her action and to restore the same to the Trial Calendar, unanimously reversed, on the law and in the exercise of discretion, and the motion granted, on condition that plaintiff’s attorneys, personally, pay to defendants Mary C. Savarese, Gaetano Tortora, Pasquale Tortora, and Louis Russo the sum of $500 plus the $40 costs and disbursements of this appeal within 20 days after they have been served by said defendants with a copy of the bill of costs to be taxed hereunder. Although we fully appreciate Special Term’s justified annoyance because of counsel’s failure to appear for trial on several occasions, we nevertheless believe that, upon the record before us, the penalty imposed was unduly harsh. The final default"does not appear to have been willful; and we find no indication of any intention by plaintiff to abandon the action or of undue prejudice to defendants if the requested relief is granted. Accordingly, under the circumstances here presented, we conclude that plaintiff should not be required to suffer the consequences of her attorneys’ conduct and that the imposition of the above costs upon offending counsel personally is a more appropriate penalty. Concur — Stevens, P. J., Nunez, Kupferman, Murphy and Lane, JJ.

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Bluebook (online)

42 A.D.2d 519, 344 N.Y.S.2d 285, 1973 N.Y. App. Div. LEXIS 4227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moscatiello-v-savarese-nyappdiv-1973.

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