Summer v. Marine Midland Bank, N. A.

190 A.D.2d 1094

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1993
• Status: Published

Opinion

— Order unanimously reversed on the law without costs, plaintiffs motion granted and defendants’ cross motions denied. Memorandum: Supreme Court erred in denying plaintiffs motion for a determination that the proposed order forwarded to the court by previous counsel was timely submitted (see, 22 NYCRR 202.48 [a]). Counsel had submitted an order within 60 days of the court’s decision but was advised by the IAS Justice that the order should be settled on notice to opposing counsel. Although considerable delay followed, some of which was attributable to plaintiff, we conclude that counsel’s original submission of the order complied with 22 NYCRR 202.48 (a). Because we find the order to have been timely submitted, defendants’ cross motions seeking to have plaintiff’s action deemed abandoned should have been denied in all respects (cf., Hickson v Gardner, 134 AD2d 930). (Appeals from Order of Supreme Court, Erie County, Francis, J. — Summary Judgment.) Present — Denman, P. J., Pine, Lawton, Fallon and Davis, JJ.