Davis v. Lyndel Corp.
| Decision Date | 14 May 1962 |
| Citation | 228 N.Y.S.2d 451,16 A.D.2d 802 |
| Parties | Joseph DAVIS, Respondent, v. LYNDEL CORP., Kennedy, Scheidel & Young, Inc., and United Parcel Service of New York, Inc., Appellants; and Barbco Building & Contracting Co., Inc., Clark Door Co., Inc., the Spivey Co., Inc., and B. Messite Co., Defendants. |
| Court | New York Supreme Court — Appellate Division |
George S. Pickwick, New York City, for appellant Kennedy, Scheidel & young.
Perrell, Nielsen & Stephens, New York City, for appellants Lyndel Corp. and United Parcel Service of N. Y., Inc.; John Nielsen, New York City, of counsel.
Louis Rothbard, Brooklyn, for respondent; Ralph Stout, Brooklyn, on the brief.
Before BELDOCK, P. J., and UGHETTA, CHRIST, HILL and HOPKINS, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries sustained by plaintiff while working as an electrician foreman for defendant B. Messite & Co., a subcontractor engaged in the construction of a building for defendant United Parcel Service of New York, Inc., certain of the defendants appeal as follows from two orders of the Supreme Court, Kings County:
(1) Defendant Kennedy, Scheidel & Young, Inc. (hereafter referred to as the Kennedy corporation) appeals from an order, dated June 5, 1961, which granted plaintiff's motion for omnibus relief by, inter alia: (a) vacating a prior order granted September 9, 1960, entered on plaintiff's default, which had granted the Kennedy corporation's motion to dismiss the action as to it for lask of prosecution; (b) opening plaintiff's default with respect to said motion to dismiss and denying the motion on the merits; (c) with respect to the examination before trial sought by plaintiff, limiting it 'as to defendants who have been served with a summons and as to whom this action continues, namely, the defendants Lyndel Corp., Barbco Building & Contracting Co., Inc., Kennedy, Scheidel & Young, Inc., United Parcel Service of New York, Inc. and B. Messite Co.'; (d) directing all of said named defendants to appear for examination by plaintiff and to produce their books and records upon such examination in order to enable plaintiff to obtain information sufficient to frame his complaint; and (e) extending plaintiff's time to serve his complaint until twenty days after said examinations shall have been completed.
(2) Defendant Lyndel corporation and defendant United corporation appeal from so much of said order of June 5, 1961, as directed them to appear for examination by plaintiff and to produce their books and records.
(3) Defendant Lyndel corporation also appeals from an order, dated June 7, 1961, which denied as academic its motion to dismiss the action pursuant to section 257 of the Civil Practice Act, by reason of plaintiff's failure to serve his complaint within the time prescribed by said section.
Order of June 7, 1961, affirmed, without costs.
Order of June 5, 1961, modified as...
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