Rosenfeld v. Hettinger

34 A.D.2d 919, 311 N.Y.S.2d 955, 1970 N.Y. App. Div. LEXIS 4532

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 11, 1970
• Status: Published

Opinion

Order entered March 13, 1969, granting defendants’ motion for summary judgment dismissing the complaint, and judgment entered thereon on March 18, 1969, unanimously reversed, on the law, without costs and without disbursements, the motion is denied and the judgment is vacated, without prejudice to a renewal of the motion previously made (and dismissed as moot) to discontinue the action within 20 days after service of a copy of the order entered herein upon respondents .by appellants, with notice of entry thereon. Properly regarded, the contretemps that developed at Special Term seems to have arisen from a misunderstanding or an unfortunate failure in rapport between the court and counsel. Although plaintiffs did not submit opposing papers to defendants’ motion, Special Term disposed of the motion while plaintiffs’ motion to discontinue the action was still pending before another Justice of the court. Under the circumstances, we believe it prudent to relegate the parties to a position in statu quo ante. Hence, our disposition herein is expressly made without prejudice to a renewal of "the dismissed motion to discontinue. Nor is our action to be construed as in any way affecting the issues in the existing actions in the Federal courts, or as an impediment to any applications for summary judgment in those courts. (See Brown v. Bullock,, 17 A D 2d 424; Marshall v. Holiday on Ice, 27 A D 2d 835.) Our disposition thus wipes the slate clean and removes any doubt as to further proceedings in the Supreme Court or Federal courts and the effect of any of the antecedent misunderstandings. Concur—Stevens, P. J., Capozzoli, McGivern, Nunez and McNally, JJ.