Ocean Home Enterprises, Inc. v. Mercer

Appellate Division of the Supreme Court of New York

Ocean Home Enterprises, Inc. v. Mercer

19 A.D.2d 549, 240 N.Y.S.2d 794, 1963 N.Y. App. Div. LEXIS 3744

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

DecidedMay 20, 1963

StatusPublished

This text of 19 A.D.2d 549 (Ocean Home Enterprises, Inc. v. Mercer) 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

Ocean Home Enterprises, Inc. v. Mercer, 19 A.D.2d 549, 240 N.Y.S.2d 794, 1963 N.Y. App. Div. LEXIS 3744 (N.Y. Ct. App. 1963).

Pincite

Opinion

-In an action to recover a balance due under a contract for the construction of a Summer house by the plaintiff for the defendants, the defendants appeal from so much of an order of the Supreme Court, Suffolk County, made July 25, 1962 upon reargument, as adhered to the court’s original decision and as: (1) vacated court orders of April 17, 1962 granting defendants’ motion to enter judgment on their counterclaims, and vacated the judgment for $4,216.75 entered May 17, 1962 on such counterclaims; (2) granted leave to plaintiff to serve nuna pro tune an amended reply; (3) vacated the court orders of April 17, 1962, denying the plaintiff’s motion to restore the action to the calendar and dismissing the complaint unless plaintiff serves a note of issue for the April 1962 Calender; (4) directed plaintiff to serve a note of issue for the next Trial Term; and (5) directed the defendants, within a stated period, to transcribe the testimony of every officer and employee of the plaintiff previously taken by defendants at their pretrial examinations of such officers and employees, and further directed that defendants’ answer shall be stricken out in the event of their failure to make such transcription. Order modified by striking out the sixth decretal paragraph directing the defendants to transcribe the testimony of plaintiff’s officers and employees, and further directing that defendants’ answer be stricken out if such transcription be not made; and plaintiff’s motion to direct such transcription denied. As so modified, order, insofar as appealed from, affirmed, without costs. In our opinion, under the circumstances, it was an improper exercise of discretion to direct the transcription of the testimony, particularly in view of defendants’ claim that the recording thereof is no longer in existence, and in view of the plaintiff’s loches for two years in demanding the transcription. Plaintiff has also failed to show that it would be prejudiced because the officers are dead or not available to testify at the trial. ICIeinfeld, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.

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-In an action to recover a balance due under a contract for the construction of a Summer house by the plaintiff for the defendants, the defendants appeal from so much of an order of the Supreme Court, Suffolk County, made July 25, 1962 upon reargument, as adhered to the court’s original decision and as: (1) vacated court orders of April 17, 1962 granting defendants’ motion to enter judgment on their counterclaims, and vacated the judgment for $4,216.75 entered May 17, 1962 on such counterclaims; (2) granted leave to plaintiff to serve nuna pro tune an amended reply; (3) vacated the court orders of April 17, 1962, denying the plaintiff’s motion to restore the action to the calendar and dismissing the complaint unless plaintiff serves a note of issue for the April 1962 Calender; (4) directed plaintiff to serve a note of issue for the next Trial Term; and (5) directed the defendants, within a stated period, to transcribe the testimony of every officer and employee of the plaintiff previously taken by defendants at their pretrial examinations of such officers and employees, and further directed that defendants’ answer shall be stricken out in the event of their failure to make such transcription. Order modified by striking out the sixth decretal paragraph directing the defendants to transcribe the testimony of plaintiff’s officers and employees, and further directing that defendants’ answer be stricken out if such transcription be not made; and plaintiff’s motion to direct such transcription denied. As so modified, order, insofar as appealed from, affirmed, without costs. In our opinion, under the circumstances, it was an improper exercise of discretion to direct the transcription of the testimony, particularly in view of defendants’ claim that the recording thereof is no longer in existence, and in view of the plaintiff’s loches for two years in demanding the transcription. Plaintiff has also failed to show that it would be prejudiced because the officers are dead or not available to testify at the trial. ICIeinfeld, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.

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Bluebook (online)

19 A.D.2d 549, 240 N.Y.S.2d 794, 1963 N.Y. App. Div. LEXIS 3744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ocean-home-enterprises-inc-v-mercer-nyappdiv-1963.