Vittorino v. City of New York

Appellate Division of the Supreme Court of New York

Vittorino v. City of New York

22 A.D.2d 883, 254 N.Y.S.2d 570, 1964 N.Y. App. Div. LEXIS 2525

Appellate Division of the Supreme Court of the State of New York·Decided December 17, 1964·Published·Cited by 1 cases

Opinion

Order entered October 22, 1964, denying plaintiffs’ motion to vacate a dismissal of the complaint for failure to proceed to trial, unanimously reversed on the law, on the facts, and, in the exercise of discretion, with $75 costs and disbursements to appellants, the motion to vacate the dismissal is granted, and the action is ordered restored to the Ready Personal Injury Jury Calendar, Supreme Court, Bronx County. It was an improvident exercise of discretion to dismiss the complaint when counsel for plaintiffs sought an adjournment of the trial to the next court day upon the grounds of illness. On the record, there is no basis for finding that the illness was feigned. In the circumstances, an adjournment of the cause was properly indicated. In vacating the dismissal, we in no way indicate our views as to the ultimate merit of plaintiffs’ cause. The resolution of that question must await a trial. Settle order on notice. Concur — Botein, P. J., Breitel, Valente, Stevens and Eager, JJ.

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Order entered October 22, 1964, denying plaintiffs’ motion to vacate a dismissal of the complaint for failure to proceed to trial, unanimously reversed on the law, on the facts, and, in the exercise of discretion, with $75 costs and disbursements to appellants, the motion to vacate the dismissal is granted, and the action is ordered restored to the Ready Personal Injury Jury Calendar, Supreme Court, Bronx County. It was an improvident exercise of discretion to dismiss the complaint when counsel for plaintiffs sought an adjournment of the trial to the next court day upon the grounds of illness. On the record, there is no basis for finding that the illness was feigned. In the circumstances, an adjournment of the cause was properly indicated. In vacating the dismissal, we in no way indicate our views as to the ultimate merit of plaintiffs’ cause. The resolution of that question must await a trial. Settle order on notice. Concur — Botein, P. J., Breitel, Valente, Stevens and Eager, JJ.

Vittorino v. City of New York, 22 A.D.2d 883, 254 N.Y.S.2d 570, 1964 N.Y. App. Div. LEXIS 2525 (N.Y. Ct. App. 1964).

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22 A.D.2d 883 (Vittorino v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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