Schickler v. Seifert

Decision Date27 June 1974
PartiesFrank J. SCHICKLER and Violet M. Schickler, Appellants, v. Patricia SEIFERT and Richard Seifert, Respondents.
CourtNew York Supreme Court — Appellate Division

Paul William Beltz, Buffalo, for appellants.

Cox, Barrell, Walsh & McFarland, James R. Walsh, Buffalo, for respondents.

Before WITMER, J.P., and MOULE, SIMONS and DEL VECCHIO, JJ.

MEMORANDUM.

This consolidated action results from a 1969 automobile accident in which an automobile owned by defendant Richard Seifert and operated by Particia Seifert struck the vehicle in which the plaintiffs were riding. Patricia Seifert pleaded guilty to a violation of Vehicle & Traffic Law 1142(a), failure to yield the right of way. The cases were sued in 1970 and 1971 respectively and notes of issue were filed promptly. Various pre-trial procedures ensued and on September 21, 1971 the case was placed on the general docket when plaintiffs'- attorney was unwilling to proceed. It appears that considerable delay was occasioned by efforts of the plaintiffs' attorney to include in the case injuries and expenses which were not contained in the original bills of particulars. After the case was placed upon the general docket two motions to file supplemental bills of particulars were made and denied on January 3, 1972 and in March, 1972. There appears to have been no other activity between the opposing attorneys, except the exchange of hospital reports, until plaintiffs made a motion to restore the case to the calendar dated September 13, 1972 and returnable September 20, 1972. Plaintiffs' counsel then defaulted on his own motion on the return date and the case was marked abandoned on September 22, 1972. The order appealed from denied plaintiffs' motion to vacate this default. Nevertheless the case has obvious merit and plaintiffs allege substantial injuries and special damages. The cases were sued and placed upon the calendar promptly and the motion to restore was made within the statutory one year period. In the year that the case remained on the general docket most of the activity by plaintiffs was unilateral in an effort to develop their medical file. However there was some communication between the parties and there can be little doubt that what is involved here is a case of neglect, not abandonment. There will be little, if any, prejudice to the defendants if the case is restored to the calendar and since the Statute of Limitations has run, a...

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4 cases
  • Gabrelian v. Gabrelian
    • United States
    • New York Supreme Court — Appellate Division
    • May 20, 1985
    ...Bissaccia v. Aknin, 54 A.D.2d 681, 387 N.Y.S.2d 264; Siegel v. Tamarack Lodge Hotel, 46 A.D.2d 684, 360 N.Y.S.2d 78; Schickler v. Seifert, 45 A.D.2d 816, 357 N.Y.S.2d 225; Moscatiello v. Savarese, 42 A.D.2d 519, 344 N.Y.S.2d 285; Moran v. Rynar, 39 A.D.2d 718, 332 N.Y.S.2d 138; Springer v. ......
  • Chase Manhattan Bank v. Wolfman
    • United States
    • New York City Court
    • June 16, 1980
    ...this court grants plaintiff's motion on condition that plaintiff's counsel pays defendant the sum of $150.00, (See Schickler v. Siefert, 45 A.D.2d 816, 357 N.Y.S.2d 225; Barrada v. Target Constr. Corp., 31 A.D.2d 810, 299 N.Y.S.2d 708; Parkchester Management Corp. v. Wehringer, App. Term, F......
  • Sesan v. American Home Products Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • May 28, 1976
    ...believe that the motion to restore this case made timely within one year under Rule 1024.13 should have been granted (Schickler v. Seifert, 45 A.D.2d 816, 357 N.Y.S.2d 225). While we believe justice would be best served by permitting plaintiff her day in court to have her action determined ......
  • Jones v. Maphey
    • United States
    • New York Supreme Court — Appellate Division
    • September 28, 1979
    ...costs in the sum of $300 to defendants. (See Sesan v. American Home Prods. Corp., 52 A.D.2d 1058, 384 N.Y.S.2d 600; Schickler v. Seifert, 45 A.D.2d 816, 357 N.Y.S.2d 225.) Order unanimously reversed and motion granted with costs to ...

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