Salinger v. Hollander

Appellate Division of the Supreme Court of New York

Salinger v. Hollander

19 A.D.2d 559, 241 N.Y.S.2d 43, 1963 N.Y. App. Div. LEXIS 3696

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

DecidedMay 27, 1963

StatusPublished

This text of 19 A.D.2d 559 (Salinger v. Hollander) 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

Salinger v. Hollander, 19 A.D.2d 559, 241 N.Y.S.2d 43, 1963 N.Y. App. Div. LEXIS 3696 (N.Y. Ct. App. 1963).

Pincite

Opinion

In an action to recover damages for personal injury, the defendant Bertha Hollander appeals from an order of the Supreme Court, Kings County, entered July 9, 1962, granting her motion, pursuant to section 181 of the Civil Practice Act, to dismiss the action as against her for lack of prosecution “ unless a note of issue herein is filed for the October, 1962 Term.” Order modified by striking therefrom the proviso as to the filing of the note of issue. As so modified, order affirmed, without costs. For having failed to serve the complaint within 20 days (and in fact for more than one year) after defendant’s demand therefor, the plaintiff was in default (Civ. Prae. Act, § 257). No motion had been made by plaintiff to open the default although this clearly was the proper procedure (Borreggine v. Di Ponzio, 10 A D 2d 811; Parmett v, Concord Hotel, 9 A D 2d 767). Moreover, plaintiff failed to show either a reasonable excuse for the default or a meritorious cause of action (Blasser v. Morrisania Milk Co., 248 App. Div. 281). Hence, it was an improvident exercise of discretion for the court to withhold the unconditional dismissal of the action. Beldock, P. J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.

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In an action to recover damages for personal injury, the defendant Bertha Hollander appeals from an order of the Supreme Court, Kings County, entered July 9, 1962, granting her motion, pursuant to section 181 of the Civil Practice Act, to dismiss the action as against her for lack of prosecution “ unless a note of issue herein is filed for the October, 1962 Term.” Order modified by striking therefrom the proviso as to the filing of the note of issue. As so modified, order affirmed, without costs. For having failed to serve the complaint within 20 days (and in fact for more than one year) after defendant’s demand therefor, the plaintiff was in default (Civ. Prae. Act, § 257). No motion had been made by plaintiff to open the default although this clearly was the proper procedure (Borreggine v. Di Ponzio, 10 A D 2d 811; Parmett v, Concord Hotel, 9 A D 2d 767). Moreover, plaintiff failed to show either a reasonable excuse for the default or a meritorious cause of action (Blasser v. Morrisania Milk Co., 248 App. Div. 281). Hence, it was an improvident exercise of discretion for the court to withhold the unconditional dismissal of the action. Beldock, P. J., Ughetta, Brennan, Hill and Hopkins, JJ., concur.

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Bluebook (online)

19 A.D.2d 559, 241 N.Y.S.2d 43, 1963 N.Y. App. Div. LEXIS 3696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salinger-v-hollander-nyappdiv-1963.