Sznukowski v. B. F. Goodrich Co.

Appellate Division of the Supreme Court of New York

Sznukowski v. B. F. Goodrich Co.

18 A.D.2d 861, 236 N.Y.S.2d 413, 1963 N.Y. App. Div. LEXIS 4786

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

DecidedJanuary 16, 1963

StatusPublished

This text of 18 A.D.2d 861 (Sznukowski v. B. F. Goodrich Co.) 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

Sznukowski v. B. F. Goodrich Co., 18 A.D.2d 861, 236 N.Y.S.2d 413, 1963 N.Y. App. Div. LEXIS 4786 (N.Y. Ct. App. 1963).

Pincite

Opinion

Appeal from an order of a Special Term, Supreme Court, Ulster County. Although the prosecution of the action has been unduly delayed, the reasons for the delay have been accepted by the Special Term as sufficient; and we decline to interfere on this record with the basic discretion there exercised. The delay is attributed to the misplacement of the file in the law office of an attorney retained as trial counsel; and there is no suggestion in any of defendant’s papers that this did not in fact occur and helped to contribute to plaintiff’s delay. It is argued by defendant that plaintiff should have furnished his own affidavit of merit in opposition to defendant’s motion to dismiss rather than an affidavit by an investigator hired by trial counsel. But who may show “merit” in a cause depends on the nature of the issue. There probably will be no serious issue on whether the tire blew out or “exploded” when being inflated; the question probably will be why it failed. The affidavit by the [862]*862investigator shows he examined the. tire and found “ a bréale in bead or steel band encased in the rim”. The colurt could have regarded this as a sufficient showing by plaintiff of merit by affidavit by a person having knowledge of essential facts. Order unanimously affirmed, with $10 costs. Present — Bergan, P. J., Coon, Herlihy, Reynolds and Taylor, JJ.

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Appeal from an order of a Special Term, Supreme Court, Ulster County. Although the prosecution of the action has been unduly delayed, the reasons for the delay have been accepted by the Special Term as sufficient; and we decline to interfere on this record with the basic discretion there exercised. The delay is attributed to the misplacement of the file in the law office of an attorney retained as trial counsel; and there is no suggestion in any of defendant’s papers that this did not in fact occur and helped to contribute to plaintiff’s delay. It is argued by defendant that plaintiff should have furnished his own affidavit of merit in opposition to defendant’s motion to dismiss rather than an affidavit by an investigator hired by trial counsel. But who may show “merit” in a cause depends on the nature of the issue. There probably will be no serious issue on whether the tire blew out or “exploded” when being inflated; the question probably will be why it failed. The affidavit by the [862]*862investigator shows he examined the. tire and found “ a bréale in bead or steel band encased in the rim”. The colurt could have regarded this as a sufficient showing by plaintiff of merit by affidavit by a person having knowledge of essential facts. Order unanimously affirmed, with $10 costs. Present — Bergan, P. J., Coon, Herlihy, Reynolds and Taylor, JJ.

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Bluebook (online)

18 A.D.2d 861, 236 N.Y.S.2d 413, 1963 N.Y. App. Div. LEXIS 4786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sznukowski-v-b-f-goodrich-co-nyappdiv-1963.