Deacon v. Witham
| Citation | 499 N.Y.S.2d 317,131 Misc.2d 217 |
| Parties | Michael Sean DEACON, Plaintiff, v. Charles WITHAM, Jr., Defendant. |
| Decision Date | 12 December 1985 |
| Court | New York City Court |
Michael Sean Deacon, pro se.
Carter, Conboy, Bardwell, Case and Blackmore, Albany, for defendant.
This is a small claims action brought by Michael Sean Deacon against Charles Witham, Jr. The action was brought to recover property damage in the amount of $958.77 which the claimant alleges his motor vehicle sustained by reason of the negligent operation of a vehicle operated by defendant Charles Witham, Jr.
The matter was originally placed on the small claims calendar for purpose of a pre-trial conference and at that time the plaintiff appeared personally and the defendant appeared through his attorneys. A discussion was had relative to a possible settlement of the action. The plaintiff set forth an amount that he would accept in order to settle the claim. The defense attorney who, in fact, represented the insurance carrier for the defendant advised the court that they would be in contact with their client and if he was not willing to settle the claim pursuant to plaintiff's demand, the matter would have to be tried. The matter was set down for trial on a day certain, Wednesday, September 11, 1985, unless prior to that date the court was advised that defendant accepted plaintiff's offer of settlement.
By letter dated July 16, 1985, the attorneys for the defendant advised the court that they had contacted their client and he was unwilling to accept plaintiff's offer to settle and, therefore, the case would have to be tried. They further stated that the only witness they intended to have present at the trial was in college and requested that the date of trial be rescheduled for a Monday or Friday in September in order to minimize the amount of time the witness would miss from school. The defendant's attorneys specifically--and I quote from their letter: In that letter no mention or request for a delay was made by reason of the defendant being in the military service.
On August 7, 1985, attorneys for the defendant in another letter to the court advised that the defendant would not be present at the trial as he was in the service and again advised that the only witness they intended to call was in college and again requested that the trial be rescheduled for a Monday or Friday for the convenience of that witness.
Relying on these statements and wishing to accommodate the defendant, his attorneys, and his witness, the court rescheduled the hearing for September 9, 1985--a Monday--and advised all parties of the same.
Thereafter, a motion pursuant to 50 USCS Appx Section 521 was filed by the attorneys for the defendant with the court on August 27, 1985. This motion requested a stay of the trial upon the grounds that the defendant was in the military service and would be unable to appear. The motion was made returnable on September 9, 1985--the date set for the hearing.
Section 521 of the U.S.C.S. Appx specifically sets forth that any action or proceeding shall be stayed unless, in the opinion of the court, the ability of the defendant to conduct his defense is not materially affected by reason of a...
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Johnson v. Burken
...70 Cal.App.2d 317, 160 P.2d 893 (1945); Lankford v. Milhollin, 201 Ga. 594, 600-01, 40 S.E.2d 376, 380 (1946); Deacon v. Witham, 131 Misc.2d 217, 499 N.Y.S.2d 317 (City Ct.1985). In asking for leave to take an interlocutory appeal, Burken waived his right to a stay of proceedings in this co......
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In re Lewis, Bankruptcy No. 97-5-1033-JS. Adversary No. 97-5258-JS.
...a party is on active duty in the military. Boone, 319 U.S. at 565, 63 S.Ct. at 1226, 87 L.Ed. 1587. See also, Deacon v. Witham, 131 Misc.2d 217, 218, 499 N.Y.S.2d 317, 319 (1985). Rather, the trial court must determine whether, in its discretion, the party's defense will be materially affec......
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Cornell Leasing Corp. v. Hemmingway
...the court to order a case forward if the military service does not materially affect the party's ability to proceed. (Deacon v. Witham, 131 Misc.2d 217, 499 N.Y.S.2d 317). In point of fact, the aim of sections 200 and 303 was not in a blunderbuss fashion to protect members of the military f......