Catanese v. Lipschitz
| Decision Date | 18 March 1974 |
| Citation | 44 A.D.2d 579,353 N.Y.S.2d 250 |
| Parties | Anthony T. CATANESE, etc., Respondent, v. Harry LIPSCHITZ et al., Defendants, and Albert Nencetti, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Before HOPKINS, Acting P.J., and COHALAN, CHRIST, BRENNAN and MUNDER, JJ.
MEMORANDUM BY THE COURT.
In this action Inter alia to recover a brokerage commission, defendant Nencetti appeals from an order of the Supreme Court, Westchester County, entered January 22, 1973, which denied his motion to dismiss the complaint, without prejudice and with leave to assert the Statute of Limitations as an affirmative defense in his answer.
Order reversed, on the law, with $20 costs and disbursements, and motion granted.
Plaintiff, a licensed real estate broker, commenced the instant action in March, 1972 against the corporate defendant and its principals, without naming Nencetti as a party, claiming, Inter alia, that he was entitled to recover a brokerage commission earned as a result of services rendered in a consummated real estate transaction in 1966. On November 14, 1972, a summons and an amended complaint were served upon defendant Nencetti, naming him as a party. The amended complaint included what was claimed to be a cause of action against Nencetti for fraud.
Nencetti made the motion now under review, to dismiss the complaint as to him, on the grounds, Inter alia, that the complaint failed to state a cause of action against him and that the Statute of Limitations had run. The opposing affirmation of plaintiff's attorney alleged that the complaint stated a proper cause of action in fraud and that, therefore, under subdivision 9 of CPLR 213, the Statute of Limitations did not bar the action.
He further asserted that, as a result of an examination before trial of one of the principals of the corporate defendant, he had discovered the fraud allegedly perpetrated by Nencetti and that within three months after the discovery thereof he served the amended complaint upon Nencetti, having first obtained the consent of the then existing defendants. There is nothing in the record to indicate that this action was taken after making an appropriate motion to add another party and to serve a supplemental summons.
Nencetti objected to this procedure in his reply affidavit and indicated that he first learned of the manner in which he was made a party by the contents of the opposing affirmation of plaintiff's attorney.
Special Term denied the...
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Seavey v. Chrysler Corp.
...of the existing parties, the joinder of a new party without court approval is a nullity," id. (citing Catanese v. Lipschitz, 44 A.D.2d 579, 580, 353 N.Y.S.2d 250, 252 (2d Dep't 1974)), but rejected that authority and followed a more recent decision from the First Department to the contrary.......
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Mesler v. Podd LLC
...constitute a judicial admission ( State of New York ex rel. H. v. P., 90 A.D.2d 434, 439 n. 4, 457 N.Y.S.2d 488; cf. Catanese v. Lipschitz, 44 A.D.2d 579, 353 N.Y.S.2d 250). Further, although the deposition testimony of a regional property manager for defendant-third-party plaintiff Develop......
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State ex rel. H. v. P.
...which is admissible (Vicherek v. Papanek, 281 App.Div. 498, 120 N.Y.S.2d 197), even when made by a party's attorney (Catanese v. Lipschitz, 44 A.D.2d 579, 353 N.Y.S.2d 250), Special Term, we think, properly observed that the statement could not be "accepted as final, it not being in the chi......
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C.B. Foods, Inc. v. Quarex Co.
...115 A.D.2d 691, 496 N.Y.S.2d 516; McDaniel v. Clarkstown Central District No. 1, 83 A.D.2d 624, 441 N.Y.S.2d 532; Catanese v. Lipschitz, 44 A.D.2d 579, 353 N.Y.S.2d 250). In addition, the court's striking of certain allegations as scandalous, prejudicial, and unnecessary is not appealable a......