Di Russo v. Kravitz
| Decision Date | 27 April 1967 |
| Citation | 279 N.Y.S.2d 586,27 A.D.2d 926 |
| Parties | Joseph DI RUSSO, Plaintiff-Respondent, v. Daniel KRAVITZ, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
H. L. Brickman, New York City, for plaintiff-respondent.
S. Tessel, Brooklyn, for defendant-appellant.
Before EAGER, J.P., and STEUER, CAPOZZOLI, RABIN and McNALLY, JJ.
Order filed April 14, 1966 denying defendant's motion for leave to renew a motion previously made pursuant to CPLR Section 3012(b) reversed on the law, the facts, and in the exercise of discretion, and the motion to renew is granted with $50 costs and disbursements to defendant and the case dismissed Nunc pro tunc as of November 29, 1963.
The original motion to dismiss the action was made pursuant to CPLR Section 3012(b) on the ground that plaintiff had, at the time the motion was made, failed to serve a complaint for approximately one year after a demand therefore had been made.In opposition to the original motion to dismiss, plaintiff submitted an affidavit claiming that during the period from August 1962, and just about up to the date the affidavit was sworn to, he was incapacitated due to two heart attacks; one being suffered in August of 1962, and the second heart attack suffered thereafter.It was plaintiff's claim that he was 'totally disabled and confined to either the hospital or (his) home * * * (and that) because of the seriousness of (his) illnesses and (his) continued poor health, (his) doctors had advised (him) to postpone any serious discussions.'Apparently, on the basis of the affidavit containing such statements, Special Term denied that motion.In any event, without such statements, the motion should have been granted.Upon the trial of the action it was revealed that those statements made by the plaintiff were false.
It was shown, clearly, that plaintiff had but one heart attack and that that attack was in August of 1962 which was more than a year prior to the date of the making of the motion and, indeed, prior to the date on which the summons was served.In addition, it was shown that the plaintiff was not incapacitated during the period from the date the summons was served up until the time the motion to dismiss was made.Far from that, the proof revealed that plaintiff was actively seeking to obtain a barber's license and did, in fact, make an application for such license; submitted to the necessary interviews therefor and took the necessary tests--and all...
To continue reading
Request your trial
-
Barasch v. Micucci
...app. dsmd. 32 N.Y.2d 897, 346 N.Y.S.2d 815, 300 N.E.2d 155; Graziano v. Albanese, 24 A.D.2d 712, 263 N.Y.S.2d 20; cf. Di Russo v. Kravitz, 27 A.D.2d 926, 279 N.Y.S.2d 586, affd. 21 N.Y.2d 1008, 290 N.Y.S.2d 928, 238 N.E.2d 329). While the decision as to what constitutes a reasonable excuse ......
-
Ferran v. Dwyer
...effects upon a party, particularly in the absence of supporting medical evidence of which the record is devoid (see, Di Russo v. Kravitz, 27 A.D.2d 926, 279 N.Y.S.2d 586, affd. 21 N.Y.2d 1008, 290 N.Y.S.2d 928, 238 N.E.2d We have reviewed the remaining contentions and find them similarly wi......
-
Di Russo v. Kravitz
...Respondent. Court of Appeals of New York. June 1, 1967. Appeal from Supreme Court, Appellate Division, First Department, 27 A.D.2d 926, 927, 279 N.Y.S.2d 586, 282 N.Y.S.2d 158, Action was brought to recover damages for alleged malpractice. The Supreme Court, Special Term, New York County, V......
- Di Russo v. Kravitz