Schaeffer v. Nathan's Famous, Inc.

Appellate Division of the Supreme Court of New York

Schaeffer v. Nathan's Famous, Inc.

40 A.D.2d 1041, 339 N.Y.S.2d 94, 1972 N.Y. App. Div. LEXIS 2966

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

DecidedDecember 29, 1972

StatusPublished

Cited by1 cases

This text of 40 A.D.2d 1041 (Schaeffer v. Nathan's Famous, Inc.) 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

Schaeffer v. Nathan's Famous, Inc., 40 A.D.2d 1041, 339 N.Y.S.2d 94, 1972 N.Y. App. Div. LEXIS 2966 (N.Y. Ct. App. 1972).

Pincite

Opinion

—In an action to recover damages for assault, false arrest and imprisonment, and malicious prosecution, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated January 7, 1972, which granted defendant’s motion, pursuant to CPLR 3216, to dismiss the complaint for failure to prosecute. Order reversed, without costs, and motion denied, upon condition that plaintiffs’ attorney personally pay $100 to defendant. The payment must be made within 20 days after entry of the order to be made herein. In our opinion the granting of the motion to dismiss the complaint was an improvident exercise of discretion under the circumstances of this ease. The factors set forth in Moran v. Rynar (39 A D 2d 718) have been considered and we believe .that proper showings of excuse, absence of willfulness, and substance and merit to the action have been made (Moran v. Rynar, supra; Springer v. Marangio, 38 A D 2d 852). We believe further that the imposition of $100 costs upon plaintiffs’ attorney, personally, is a proper penalty for his failure to diligently prosecute the action (Moran v. Ryner, supra; Springer v. Marangio, supra; Douglaston Estates v. Consolidated Edison Co., 39 A D 2d 705). Martuscello, Acting P. J., Latham, Shapiro, Christ and Benjamin JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—In an action to recover damages for assault, false arrest and imprisonment, and malicious prosecution, plaintiffs appeal from an order of the Supreme Court, Nassau County, dated January 7, 1972, which granted defendant’s motion, pursuant to CPLR 3216, to dismiss the complaint for failure to prosecute. Order reversed, without costs, and motion denied, upon condition that plaintiffs’ attorney personally pay $100 to defendant. The payment must be made within 20 days after entry of the order to be made herein. In our opinion the granting of the motion to dismiss the complaint was an improvident exercise of discretion under the circumstances of this ease. The factors set forth in Moran v. Rynar (39 A D 2d 718) have been considered and we believe .that proper showings of excuse, absence of willfulness, and substance and merit to the action have been made (Moran v. Rynar, supra; Springer v. Marangio, 38 A D 2d 852). We believe further that the imposition of $100 costs upon plaintiffs’ attorney, personally, is a proper penalty for his failure to diligently prosecute the action (Moran v. Ryner, supra; Springer v. Marangio, supra; Douglaston Estates v. Consolidated Edison Co., 39 A D 2d 705). Martuscello, Acting P. J., Latham, Shapiro, Christ and Benjamin JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

40 A.D.2d 1041, 339 N.Y.S.2d 94, 1972 N.Y. App. Div. LEXIS 2966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schaeffer-v-nathans-famous-inc-nyappdiv-1972.

Opinion

Related

Cite This Page — Counsel Stack