Paiement v. Hertz Corp.

Appellate Division of the Supreme Court of New York

Paiement v. Hertz Corp.

47 A.D.2d 889, 367 N.Y.S.2d 28, 1975 N.Y. App. Div. LEXIS 9299

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

DecidedApril 24, 1975

StatusPublished

Cited by2 cases

This text of 47 A.D.2d 889 (Paiement v. Hertz Corp.) 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

Paiement v. Hertz Corp., 47 A.D.2d 889, 367 N.Y.S.2d 28, 1975 N.Y. App. Div. LEXIS 9299 (N.Y. Ct. App. 1975).

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Opinion

Order, Supreme Court, New York County, entered October 28, 1974, denying plaintiff’s motion to restore the case to the Trial Calendar and for leave to serve a supplemental bill of particulars, unanimously reversed, on the law and the facts and in the exercise of discretion, and the motion granted, without costs or disbursements. A primary cause for delay in prosecution of this suit was the substitution of attorneys on three separate occasions by plaintiff. During the interim, the case was marked off the calendar and was subsequently dismissed pursuant to CPLR 3404. Plaintiff’s present counsel made several applications for additional discovery proceedings which motions were opposed by defendants. These motions were litigated at a time when plaintiff’s latest counsel was unaware that the case had already been marked "off calendar.” It is apparent that there was no intentional abandonment of this lawsuit (cf. Marco v Sachs, 10 NY2d 542), and we therefore conclude that it was an improvident exercise of discretion to deny the relief requested. We further find that sufficient was shown to allow plaintiff to file the proposed supplemental bill of particulars. Concur — Murphy, J. P., Lupiano, Capozzoli, Lane and Nunez, JJ.

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Order, Supreme Court, New York County, entered October 28, 1974, denying plaintiff’s motion to restore the case to the Trial Calendar and for leave to serve a supplemental bill of particulars, unanimously reversed, on the law and the facts and in the exercise of discretion, and the motion granted, without costs or disbursements. A primary cause for delay in prosecution of this suit was the substitution of attorneys on three separate occasions by plaintiff. During the interim, the case was marked off the calendar and was subsequently dismissed pursuant to CPLR 3404. Plaintiff’s present counsel made several applications for additional discovery proceedings which motions were opposed by defendants. These motions were litigated at a time when plaintiff’s latest counsel was unaware that the case had already been marked "off calendar.” It is apparent that there was no intentional abandonment of this lawsuit (cf. Marco v Sachs, 10 NY2d 542), and we therefore conclude that it was an improvident exercise of discretion to deny the relief requested. We further find that sufficient was shown to allow plaintiff to file the proposed supplemental bill of particulars. Concur — Murphy, J. P., Lupiano, Capozzoli, Lane and Nunez, JJ.

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Bluebook (online)

47 A.D.2d 889, 367 N.Y.S.2d 28, 1975 N.Y. App. Div. LEXIS 9299, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paiement-v-hertz-corp-nyappdiv-1975.

Opinion

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