Jordan v. Levy
| Citation | 16 A.D.2d 64,225 N.Y.S.2d 399 |
| Parties | Henry JORDAN, Plaintiff-Appellant, v. Lester LEVY, individually and doing business as Teddy's Shanty, Defendant-Respondent, and Charles Walker, Defendant. |
| Decision Date | 06 March 1962 |
| Court | New York Supreme Court — Appellate Division |
Thomas J. O'Neill, New York City, of counsel (O'Neill, Higgins & Latto, New York City, attorneys), for plaintiff-appellant.
Copal Mintz, New York City, of counsel (Garbarini & Kroll, New York City, attorneys), for defendant-respondent.
Before BOTEIN, P. J., and RABIN, VALENTE, EAGER and BERGAN, JJ.
We have an example here of a gross misunderstanding of the summary judgment procedure which has now resulted in a delay of many months in disposing of this litigation on the merits. The action was brought to recover for personal injuries as a result of an assault upon plaintiff by defendant-respondent's employee in respondent's restaurant. The action was brought on for trial in March, 1960, but, thereupon, a mistrial was declared during plaintiff's testimony. Upwards of seven months thereafter, and upon the cause being restored to the day calendar for trial, this motion for summary judgment was made by the respondent. Then, pending the motion, the cause was reached for trial, assigned to a Trial Part, and a jury drawn for the second trial. Thereupon, a decision on the motion coming down, the second trial was halted and a mistrial declared. This was in October, 1960, and the action is still undisposed of.
The timing of a summary judgment motion so as to make it returnable on the eve of the trial of an action has a tendency to frustrate rather than to further the primary purpose of the remedy, which is to obviate delay in litigation. When a cause has progressed to the point of imminent trial in the usual course, the disposal of the litigation will not then be accelerated by a motion for summary judgment. The motion then made, rather than a proceeding in the furtherance of administration of justice (see Curry v. Mackenzie, 239 N.Y. 267, 272, 146 N.E. 375, 376) may very well serve the purpose of a weapon to harass and delay an adversary.
In a case where special circumstances make it necessary or proper for a summary judgment motion to be made when a case has reached the day calendar for trial, then, of course, the movant, by his papers and on argument or submission, should apprise Spcial Term of the position of the case on the day calendar (which apparently was not done in this case); and thereupon Special Term may find it advisable to refer the motion to the trial court. This would be the procedure usually to be followed in order to avoid a duplication in work and to facilitate the administration of justice.
Furthermore, this motion by respondent for summary judgment was fundamentally without merit. In support of his position that the assault was a personal act by his employee outside of the scope of employment, he relied principally upon the plaintiff's testimony given on the mistrial. But the mistrial occurred before plaintiff had rested. Thus, by the practice here, the defendant has obtained the equivalent of a directed verdict on the basis of an incomplete plaintiff's case notwithstanding the well-settled rule of law that a directed verdict, which is so obtained, may not be sustained. Cf. Levy v. Goldman, 252 App.Div. 781, 299 N.Y.S. 158.
In any event, under the circumstances, we are bound to view the testimony of the plaintiff in its most favorable light from his standpoint...
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