Musco v. Conte

Appellate Division of the Supreme Court of New York

Musco v. Conte

34 A.D.2d 796, 313 N.Y.S.2d 328, 1970 N.Y. App. Div. LEXIS 4927

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

DecidedMay 11, 1970

StatusPublished

This text of 34 A.D.2d 796 (Musco v. Conte) 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

Musco v. Conte, 34 A.D.2d 796, 313 N.Y.S.2d 328, 1970 N.Y. App. Div. LEXIS 4927 (N.Y. Ct. App. 1970).

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Opinion

In an action to recover damages for wrongful death and conscious pain and suffering, plaintiff appeals from an order of the Supreme Court, Westchester County, dated March 11, 1969, which 'denied plaintiff’s three successive motions to open her default and restore the action to the Trial Calendar. Order reversed, on the law and the facts, with a single bill of $10 costs and disbursements jointly against respondents filing separate briefs, and motions granted. In our opinion, the record sufficiently establishes that plaintiff never intended to [797]*797abandon the action. Absent demonstrated prejudice to defendants, it was an improvident exercise of discretion to deny the motion (cf. Marco v. Sachs, 10 N Y 2d 542; Boyle v. Krebs & Schulz Motors, 18 A D 2d 1010; Blau v. Levine, 28 A D 2d 1137; Briskman v. Kushner, 33 A D 2d 1042). Christ, P. J., Rabin, Martuscello, Kleinfeld and Benjamin, JJ., concur.

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In an action to recover damages for wrongful death and conscious pain and suffering, plaintiff appeals from an order of the Supreme Court, Westchester County, dated March 11, 1969, which 'denied plaintiff’s three successive motions to open her default and restore the action to the Trial Calendar. Order reversed, on the law and the facts, with a single bill of $10 costs and disbursements jointly against respondents filing separate briefs, and motions granted. In our opinion, the record sufficiently establishes that plaintiff never intended to [797]*797abandon the action. Absent demonstrated prejudice to defendants, it was an improvident exercise of discretion to deny the motion (cf. Marco v. Sachs, 10 N Y 2d 542; Boyle v. Krebs & Schulz Motors, 18 A D 2d 1010; Blau v. Levine, 28 A D 2d 1137; Briskman v. Kushner, 33 A D 2d 1042). Christ, P. J., Rabin, Martuscello, Kleinfeld and Benjamin, JJ., concur.

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Bluebook (online)

34 A.D.2d 796, 313 N.Y.S.2d 328, 1970 N.Y. App. Div. LEXIS 4927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/musco-v-conte-nyappdiv-1970.