Baker, Voorhis & Co. v. Heckman
| Decision Date | 27 June 1967 |
| Citation | 280 N.Y.S.2d 940,28 A.D.2d 673 |
| Court | New York Supreme Court — Appellate Division |
| Parties | BAKER, VOORHIS & CO., Inc., Plaintiff-Appellant, v. John J. HECKMAN, Defendant-Respondent. |
F. Noz, Jamaica, for plaintiff-appellant.
Before STEVENS, J.P., and EAGER, STEUER, RABIN and McNALLY, JJ.
Appeal by plaintiff from order, entered January 13, 1967, dismissed with $30 costs and disbursements to respondent. The order was not appealable as of right. This action was brought in New York County but the plaintiff's motion, which was for summary judgment, was made returnable at a Special Term in Queens County. The defendant failed to appear in opposition to the motion and the order, from which this appeal was taken, merely referred the motion to New York County. While CPLR 2212(a) by its terms authorized the plaintiff to make this motion in the New York County action returnable at a Special Term in queens County, an adjoining county, it was not an abuse of discretion for Special Term to refer the motion to New York County where the papers are filed and where the judgment is to be entered. In the absence of special circumstances, it is considered proper for the Special Terms within the counties in the City of New York to give effect in this manner to the prevailing practice in such counties of making motions returnable in the Judicial Department where the action or special proceeding is brought. In any event, the order here did not decide the motion made by plaintiff and, furthermore, it does not effect a substantial right of plaintiff (see CPLR 5701(a)(2), 5701(a)(2)(v)). Plaintiff may apply in New York County for the relief to which it is entitled.
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