Welch Allyn, Inc. v. Vail Tool Co.

Appellate Division of the Supreme Court of New York

Welch Allyn, Inc. v. Vail Tool Co.

219 A.D.2d 824, 631 N.Y.S.2d 972, 1995 N.Y. App. Div. LEXIS 10865

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

DecidedSeptember 29, 1995

StatusPublished

This text of 219 A.D.2d 824 (Welch Allyn, Inc. v. Vail Tool 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

Welch Allyn, Inc. v. Vail Tool Co., 219 A.D.2d 824, 631 N.Y.S.2d 972, 1995 N.Y. App. Div. LEXIS 10865 (N.Y. Ct. App. 1995).

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Opinion

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly permitted the application of defendants’ attorney to withdraw to be made by cross motion rather than by order to show cause. Defendants’ and plaintiff’s counsel were aware of the application (see, CPLR 321 [b] [2]), were present during oral [825]*825argument and did not object to the relief sought (see, Piercy v Piercy, 97 AD2d 972). Because defendants’ attorneys demonstrated sufficient cause, the court properly granted that application (see, Solomon v Solomon, 172 AD2d 1081).

The court erred, however, in simultaneously granting plaintiffs motion for partial summary judgment rather than ordering a 30-day stay to enable defendants to obtain new counsel to oppose plaintiffs motion on the merits (see, CPLR 321 [c]). Defendants’ counsel affirmed that defendants had a meritorious defense. The 45-day stay of future proceedings granted by the court was of limited usefulness because the court had already determined plaintiffs motion with respect to liability; all that was left was an inquest on damages at which defendants were precluded from presenting evidence of any records relative to cost other than invoices previously produced pursuant to court order.

We vacate the award of dispositive relief to plaintiff contained in paragraphs 2, 3, 4, 7, 8 and 9 of the order without prejudice to renewal of plaintiffs motion for partial summary judgment and other relief after the expiration of the statutory 30-day stay. In view of our determination, we have not considered the merits of plaintiffs motion. (Appeal from Order of Supreme Court, Onondaga County, Mordue, J. — Summary Judgment.) Present — Green, J. P., Pine, Wesley, Callahan and Davis, JJ.

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Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly permitted the application of defendants’ attorney to withdraw to be made by cross motion rather than by order to show cause. Defendants’ and plaintiff’s counsel were aware of the application (see, CPLR 321 [b] [2]), were present during oral [825]*825argument and did not object to the relief sought (see, Piercy v Piercy, 97 AD2d 972). Because defendants’ attorneys demonstrated sufficient cause, the court properly granted that application (see, Solomon v Solomon, 172 AD2d 1081).

The court erred, however, in simultaneously granting plaintiffs motion for partial summary judgment rather than ordering a 30-day stay to enable defendants to obtain new counsel to oppose plaintiffs motion on the merits (see, CPLR 321 [c]). Defendants’ counsel affirmed that defendants had a meritorious defense. The 45-day stay of future proceedings granted by the court was of limited usefulness because the court had already determined plaintiffs motion with respect to liability; all that was left was an inquest on damages at which defendants were precluded from presenting evidence of any records relative to cost other than invoices previously produced pursuant to court order.

We vacate the award of dispositive relief to plaintiff contained in paragraphs 2, 3, 4, 7, 8 and 9 of the order without prejudice to renewal of plaintiffs motion for partial summary judgment and other relief after the expiration of the statutory 30-day stay. In view of our determination, we have not considered the merits of plaintiffs motion. (Appeal from Order of Supreme Court, Onondaga County, Mordue, J. — Summary Judgment.) Present — Green, J. P., Pine, Wesley, Callahan and Davis, JJ.

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Bluebook (online)

219 A.D.2d 824, 631 N.Y.S.2d 972, 1995 N.Y. App. Div. LEXIS 10865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welch-allyn-inc-v-vail-tool-co-nyappdiv-1995.

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