Struzer v. Foschetti

New York Supreme Court

Struzer v. Foschetti

18 Misc. 2d 952, 162 N.Y.S.2d 372, 1957 N.Y. Misc. LEXIS 3389

DecidedMarch 5, 1957

StatusPublished

This text of 18 Misc. 2d 952 (Struzer v. Foschetti) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Struzer v. Foschetti, 18 Misc. 2d 952, 162 N.Y.S.2d 372, 1957 N.Y. Misc. LEXIS 3389 (N.Y. Super. Ct. 1957).

Pincite

Opinion

Benjamin Brenner, J.

Plaintiff in action No. 1 seeks to sever that action, previously consolidated with action No. 2, and to transfer it to the City Court. The consolidated action was denied a preference under rule 9 of this court and given a non-preferred status on the court calendar. The attorneys for the plaintiffs in action No. 2 have refused to stipulate for the transfer of the consolidated action to the City Court. Defendants’ objection to a severance and a transfer is a claim of possible difficulty to subpoena witnesses who may move and reside outside the jurisdiction of the City Court. Even if this were a factual and not a conjectural objection, the claimed prejudice is altogether overshadowed by the need to afford a trial to plaintiff in action No. 1, which would be wholly denied him were a severance and transfer to be withheld. Section 110-b of the Civil Practice Act authorizes the transfer, even without consent [953]*953of the defendants. Neither the prior consolidation nor the refusal of plaintiffs in action No. 2 to consent should bar transfer which would have been granted, pro forma, following denial of a preference under rule 9, had there been no consolidation. It was never intended by rule 9 of this court to wholly bar trial to one who erroneously chooses the wrong forum.

Motion granted. Settle order on notice.

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Benjamin Brenner, J.

Plaintiff in action No. 1 seeks to sever that action, previously consolidated with action No. 2, and to transfer it to the City Court. The consolidated action was denied a preference under rule 9 of this court and given a non-preferred status on the court calendar. The attorneys for the plaintiffs in action No. 2 have refused to stipulate for the transfer of the consolidated action to the City Court. Defendants’ objection to a severance and a transfer is a claim of possible difficulty to subpoena witnesses who may move and reside outside the jurisdiction of the City Court. Even if this were a factual and not a conjectural objection, the claimed prejudice is altogether overshadowed by the need to afford a trial to plaintiff in action No. 1, which would be wholly denied him were a severance and transfer to be withheld. Section 110-b of the Civil Practice Act authorizes the transfer, even without consent [953]*953of the defendants. Neither the prior consolidation nor the refusal of plaintiffs in action No. 2 to consent should bar transfer which would have been granted, pro forma, following denial of a preference under rule 9, had there been no consolidation. It was never intended by rule 9 of this court to wholly bar trial to one who erroneously chooses the wrong forum.

Motion granted. Settle order on notice.

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Bluebook (online)

18 Misc. 2d 952, 162 N.Y.S.2d 372, 1957 N.Y. Misc. LEXIS 3389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/struzer-v-foschetti-nysupct-1957.