Renee v. Peterfreund

Appellate Division of the Supreme Court of New York

Renee v. Peterfreund

3 A.D.2d 738, 160 N.Y.S.2d 61, 1957 N.Y. App. Div. LEXIS 6112

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

DecidedMarch 19, 1957

StatusPublished

This text of 3 A.D.2d 738 (Renee v. Peterfreund) 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

Renee v. Peterfreund, 3 A.D.2d 738, 160 N.Y.S.2d 61, 1957 N.Y. App. Div. LEXIS 6112 (N.Y. Ct. App. 1957).

Pincite

Opinion

Dismissal of the complaint on the call of the calendar was justified since plaintiff failed to show by proper papers a reasonable excuse for the adjournment sought. The papers submitted on subsequent motions to open the default were likewise wholly inadequate. We, therefore, agree with the disposition made below. However, since there was a claim of illness made and nothing was shown to contradict it, plaintiff should be given the further opportunity to establish that she is entitled to her day in court and to that end she will be permitted to renew the motion to open her default, but only upon compliance with the following terms: (1) payment of a full bill of costs; (2) submission of an affidavit of merits stating fully the facts forming the basis of the action; (3) submission of an affidavit by a doctor showing specifically and in detail not only what plaintiff’s condition was at the time the ease was dismissed but also giving full information as to her present condition; (4) submission by plaintiff to a physical examination if defendant so requests. Order unanimously modified in accordance with the above, and, as so modified, affirmed, with $20 costs and disbursements to the respondents. Settle order on notice. Concur — Peck, P. J., Breitel, Botein, Rabin and Prank, JJ.

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Dismissal of the complaint on the call of the calendar was justified since plaintiff failed to show by proper papers a reasonable excuse for the adjournment sought. The papers submitted on subsequent motions to open the default were likewise wholly inadequate. We, therefore, agree with the disposition made below. However, since there was a claim of illness made and nothing was shown to contradict it, plaintiff should be given the further opportunity to establish that she is entitled to her day in court and to that end she will be permitted to renew the motion to open her default, but only upon compliance with the following terms: (1) payment of a full bill of costs; (2) submission of an affidavit of merits stating fully the facts forming the basis of the action; (3) submission of an affidavit by a doctor showing specifically and in detail not only what plaintiff’s condition was at the time the ease was dismissed but also giving full information as to her present condition; (4) submission by plaintiff to a physical examination if defendant so requests. Order unanimously modified in accordance with the above, and, as so modified, affirmed, with $20 costs and disbursements to the respondents. Settle order on notice. Concur — Peck, P. J., Breitel, Botein, Rabin and Prank, JJ.

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Bluebook (online)

3 A.D.2d 738, 160 N.Y.S.2d 61, 1957 N.Y. App. Div. LEXIS 6112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/renee-v-peterfreund-nyappdiv-1957.