Tate v. Tate

Appellate Division of the Supreme Court of New York

Tate v. Tate

73 A.D.2d 554, 422 N.Y.S.2d 709, 1979 N.Y. App. Div. LEXIS 14324

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

DecidedDecember 18, 1979

StatusPublished

This text of 73 A.D.2d 554 (Tate v. Tate) 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

Tate v. Tate, 73 A.D.2d 554, 422 N.Y.S.2d 709, 1979 N.Y. App. Div. LEXIS 14324 (N.Y. Ct. App. 1979).

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Opinion

Order, Supreme Court, New York County, entered April 23, 1979, and judgment entered thereon on April 30, 1979, unanimously affirmed without opinion. Order, Supreme Court, New York County, entered July 6, 1979, insofar as it awarded plaintiff a counsel fee in the sum of $1,000 and denied plaintiff’s application for an order requiring defendant to post a surety bond "without prejudice to a renewal in the event that defendant does not diligently prosecute his appeal,” unanimously modified, on the facts and in the exercise of discretion, to strike the provision for a counsel fee and the provision relating to diligent prosecution of defendant’s appeal. As so modified, the order is affirmed, without costs. The circumstances disclosed in the present record do not justify the award of an additional counsel fee. Nor was it appropriate for Special Term to condition the denial of the primary relief sought by plaintiff upon defendant’s diligent prosecution of an appeal. Such is the prerogative of the Appellate Division. Concur—Murphy, P. J., Kupferman, Birns, Sandler and Sullivan, JJ.

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Order, Supreme Court, New York County, entered April 23, 1979, and judgment entered thereon on April 30, 1979, unanimously affirmed without opinion. Order, Supreme Court, New York County, entered July 6, 1979, insofar as it awarded plaintiff a counsel fee in the sum of $1,000 and denied plaintiff’s application for an order requiring defendant to post a surety bond "without prejudice to a renewal in the event that defendant does not diligently prosecute his appeal,” unanimously modified, on the facts and in the exercise of discretion, to strike the provision for a counsel fee and the provision relating to diligent prosecution of defendant’s appeal. As so modified, the order is affirmed, without costs. The circumstances disclosed in the present record do not justify the award of an additional counsel fee. Nor was it appropriate for Special Term to condition the denial of the primary relief sought by plaintiff upon defendant’s diligent prosecution of an appeal. Such is the prerogative of the Appellate Division. Concur—Murphy, P. J., Kupferman, Birns, Sandler and Sullivan, JJ.

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Bluebook (online)

73 A.D.2d 554, 422 N.Y.S.2d 709, 1979 N.Y. App. Div. LEXIS 14324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tate-v-tate-nyappdiv-1979.