Soffair v. Koffler

29 A.D.2d 659, 286 N.Y.S.2d 593, 1968 N.Y. App. Div. LEXIS 4935

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 8, 1968
• Status: Published

Opinion

Order of the Supreme Court, Westchester County, dated June 1, 1967, which denied appellants’ motion (deemed by this court as one to rehear the piior motion which resulted in the order of said court dated May 8, 1967), reversed, without costs, motion granted and, upon such rehearing, appellants are excused for having failed to pay $500 to plaintiff’s attorney two days prior to the date fixed for their examinations before trial and they are hereby ordered to make such payment not less than 10 days prior to a new date to be set for their examinations before trial. The examinations before trial are to take place on a date and place mutually agreed upon among the parties within 30 days after the entry and service of the order hereon or upon such date and place as the Special Term shall order upon failure of the parties to agree. Appeal from order of the same court dated May 8, 1967 dismissed, as academic in view of the determination herein on the appeal from the order dated June 1, 1967, without costs. The motion which resulted in the June 1, 1967 order, nominally entitled one to resettle, was based on new and additional facts occurring after the May 8, 1967 order. Because it was so based, it is properly deemed one to rehear or renew the prior motion and an order denying such relief is appealable (Suffolk é Nassau Amusement Co. v. Wurlitzer Co., 24 A D 2d 893, mot. for iv. to opp. dsmd. 17 1ST Y 2d 669; Bentz v. Krasner, 15 A D 2d 669; 10 Carmody-Wait 2d, 1ST. Y. Prac., § 70:43). We are of the opinion that the acts of appellants did not amount to a willful disregard of the Special Term’s prior order and, under the circumstances, appellants should be given one more additional chance to redeem themselves and have their day in court. Beldock, P. J., Christ, Brennan, Hopkins and Munder, JJ., concur.