Di Russo v. Kravitz

• Decision Date: 18 April 1968
• Citation: 21 N.Y.2d 1008,290 N.Y.S.2d 928,238 N.E.2d 329
• Parties: , 238 N.E.2d 329 Joseph DI RUSSO, Appellant, v. Daniel KRAVITZ, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 928

290 N.Y.S.2d 928

21 N.Y.2d 1008, 238 N.E.2d 329

Joseph DI RUSSO, Appellant, v. Daniel KRAVITZ, Respondent.

Court of Appeals of New York.

April 18, 1968.

Emanuel Redfield and Herbert L. Brickman, New York City, for appellant.

Benjamin H. Siff and J. Austin Browne, New York City, for respondent.

PER CURIAM.

Orders affirmed, with costs, in the following memorandum: To permit plaintiff to recover after he deliberately and willfully submitted a false affidavit to mislead the court would place a premium on such reprehensible and illegal conduct.

Plaintiff's false affidavit was used to defeat defendant's right to a dismissal of the action. Such grievous misconduct offends against fundamental concepts of the true administration of justice.

Defendant's motion for renewal of the motion to dismiss was promptly made upon the discovery of the fraud during trial and before the case was concluded and a final determination rendered.

Under these circumstances, the Appellate Division did not abuse its discretion in granting said motion Nunc pro tunc, 27 A.D.2d 926, 927, 282 N.Y.S.2d 158, 159.

FULD, C.J., and BURKE, SCILEPPI, BERGAN and JASEN, JJ., concur.

KEATING and BREITEL, JJ., dissent and vote to reverse and grant a new trial on the ground that, as a matter of law, plaintiff should not be denied his $75,000 judgment because of his admittedly reprehensible conduct in filing a false affidavit on an earlier practice motion (cf. Peters v. Berkeley, 219 App.Div. 261, 263--264, 219 N.Y.S. 709, 711--713).