Smith v. Feltman

Appellate Division of the Supreme Court of New York

Smith v. Feltman

20 A.D.2d 920, 249 N.Y.S.2d 471, 1964 N.Y. App. Div. LEXIS 4015

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

DecidedApril 20, 1964

StatusPublished

This text of 20 A.D.2d 920 (Smith v. Feltman) 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

Smith v. Feltman, 20 A.D.2d 920, 249 N.Y.S.2d 471, 1964 N.Y. App. Div. LEXIS 4015 (N.Y. Ct. App. 1964).

Pincite

Opinion

In an action to impress a trust upon a certain bank account, the defendant Columbia Savings & Loan Association appeals from an order of the Supreme Court, Queens County, dated December 26, 1963, which granted conditionally its motion to dismiss the complaint for lack of prosecution (CPLR 3216). Order reversed, with costs; and said defendant’s motion to dismiss the complaint for lack of prosecution granted unconditionally. The record contains no reasonable explanation for the inordinate delay in the prosecution of this action, nor have plaintiffs submitted any affidavit of merits. Under the circumstances, upon the granting of the motion to dismiss, it was an [921]*921improvident exercise of discretion to include a proviso in effect denying the motion if the plaintiffs should file a note of issue and readiness statement “ for the next available term ”. The motion should have been granted unconditionally (Keating v. Smith, 20 A D 2d 141). Beldock, P. J., Ughetta, Kleinfcld, Hill and Rabin, JJ., concur.

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In an action to impress a trust upon a certain bank account, the defendant Columbia Savings & Loan Association appeals from an order of the Supreme Court, Queens County, dated December 26, 1963, which granted conditionally its motion to dismiss the complaint for lack of prosecution (CPLR 3216). Order reversed, with costs; and said defendant’s motion to dismiss the complaint for lack of prosecution granted unconditionally. The record contains no reasonable explanation for the inordinate delay in the prosecution of this action, nor have plaintiffs submitted any affidavit of merits. Under the circumstances, upon the granting of the motion to dismiss, it was an [921]*921improvident exercise of discretion to include a proviso in effect denying the motion if the plaintiffs should file a note of issue and readiness statement “ for the next available term ”. The motion should have been granted unconditionally (Keating v. Smith, 20 A D 2d 141). Beldock, P. J., Ughetta, Kleinfcld, Hill and Rabin, JJ., concur.

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Bluebook (online)

20 A.D.2d 920, 249 N.Y.S.2d 471, 1964 N.Y. App. Div. LEXIS 4015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-feltman-nyappdiv-1964.