Paliotto v. Hartman

Appellate Division of the Supreme Court of New York

Paliotto v. Hartman

8 A.D.2d 981, 190 N.Y.S.2d 733, 1959 N.Y. App. Div. LEXIS 7516

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

DecidedJuly 28, 1959

StatusPublished

This text of 8 A.D.2d 981 (Paliotto v. Hartman) 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

Paliotto v. Hartman, 8 A.D.2d 981, 190 N.Y.S.2d 733, 1959 N.Y. App. Div. LEXIS 7516 (N.Y. Ct. App. 1959).

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Opinion

In an action to recover damages for malicious prosecution (1st cause of action) and for conspiracy (2d cause of action), the appeals are (1) from an order entered November 25, 1958 denying, as untimely, a motion to extend appellant’s time to file a statement of readiness, and (2) from so much of an order entered March 26, 1959 as on reargument adhered to the original decision denying appellant’s motion for partial judgment against respondent Sylvia Hartman. Order entered November 25, 1958 reversed, without costs, and motion granted; appellant shall, within 10 days after the entry of the order hereon, file a certified copy of said order, whereupon the action is to be restored to the Trial Calendar. Appellant’s motion was made returnable before the lapse of one year after the action was struck from the calendar. We have held that similar motions were not untimely although made after the lapse of a year after the action had been struck from the calendar (Shanack v. Long Is. Daily Press Pub. Co., 8 A D 2d 836; Purcell v. Long Is. Daily Press Pub. Co., 8 A D 2d 731; Muchemore v. MacDonald, 7 A D 2d 1016). It appears that pretrial proceedings were still pending at the time of the dismissal, and appellant was thus unable to file a statement of readiness. If appellant has unduly delayed completing pretrial proceedings, respondents may move to dismiss for failure to prosecute. No prejudice to respondents has been shown as a result of the delay. Order entered March 26, 1959 modified by adding thereto a provision that respondent Sylvia Hartman may amend her answer to deny the allegations of the second cause of action. As so modified, order insofar as appealed from affirmed, without costs. The amended answer is to be served, if said respondent be so advised, within 10 days after the entry of the other hereon. It is clear that this respondent’s failure to deny the, allegations of the second cause of. [982]*982action was not intentional. In view of her request in the Special Term and on this appeal for permission to amend her answer, the order appealed from is modified accordingly. Wenzel, Acting P. J., Beldock, Murphy and Kleinfeld, JJ., concur; Hallinan, J., not voting.

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In an action to recover damages for malicious prosecution (1st cause of action) and for conspiracy (2d cause of action), the appeals are (1) from an order entered November 25, 1958 denying, as untimely, a motion to extend appellant’s time to file a statement of readiness, and (2) from so much of an order entered March 26, 1959 as on reargument adhered to the original decision denying appellant’s motion for partial judgment against respondent Sylvia Hartman. Order entered November 25, 1958 reversed, without costs, and motion granted; appellant shall, within 10 days after the entry of the order hereon, file a certified copy of said order, whereupon the action is to be restored to the Trial Calendar. Appellant’s motion was made returnable before the lapse of one year after the action was struck from the calendar. We have held that similar motions were not untimely although made after the lapse of a year after the action had been struck from the calendar (Shanack v. Long Is. Daily Press Pub. Co., 8 A D 2d 836; Purcell v. Long Is. Daily Press Pub. Co., 8 A D 2d 731; Muchemore v. MacDonald, 7 A D 2d 1016). It appears that pretrial proceedings were still pending at the time of the dismissal, and appellant was thus unable to file a statement of readiness. If appellant has unduly delayed completing pretrial proceedings, respondents may move to dismiss for failure to prosecute. No prejudice to respondents has been shown as a result of the delay. Order entered March 26, 1959 modified by adding thereto a provision that respondent Sylvia Hartman may amend her answer to deny the allegations of the second cause of action. As so modified, order insofar as appealed from affirmed, without costs. The amended answer is to be served, if said respondent be so advised, within 10 days after the entry of the other hereon. It is clear that this respondent’s failure to deny the, allegations of the second cause of. [982]*982action was not intentional. In view of her request in the Special Term and on this appeal for permission to amend her answer, the order appealed from is modified accordingly. Wenzel, Acting P. J., Beldock, Murphy and Kleinfeld, JJ., concur; Hallinan, J., not voting.

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Bluebook (online)

8 A.D.2d 981, 190 N.Y.S.2d 733, 1959 N.Y. App. Div. LEXIS 7516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paliotto-v-hartman-nyappdiv-1959.