Haber v. Telson
| Decision Date | 09 January 1958 |
| Citation | 4 N.Y.2d 687,171 N.Y.S.2d 83 |
| Parties | , 148 N.E.2d 300 Miriam HABER et al., Appellants, v. David R. TELSON, Respondents. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Second Department, 4 A.D.2d 677, 163 N.Y.S.2d 503.
Action was brought to recover damages arising out of alleged malpractice of defendant.
The Supreme Court, Special Term, Kings County, Jacob J. Schwartzwald, J., 2 Misc.2d 118, 154 N.Y.S.2d 419, entered an order denying the motion of the defendant to dismiss the complaint, and he appealed.
The Appellate Division, 4 A.D.2d 677, 163 N.Y.S.2d 503, reversed the order, granted the motion, and held that action was barred by one-year limitation period of Section 23 of the Civil Practice Act providing that if an action is commenced within time limited therefor, and judgment therein is reversed on appeal without awarding new trial, or action is terminated in any other manner than by voluntary discontinuance, dismissal of complaint for neglect to prosecute the action, or a final judgment on the merits, the plaintiff, or, if he dies and cause of action survives, his representative, may commence a new action for the same cause after expiration of time so limited and within one year after such reversal or termination, where undisputed evidence showed that when prior action between same parties for same same causes appeared on ready day calendar both sides answered 'Ready' and were instructed to select a jury, and plaintiffs failed to appear in the prior action for that purpose, though additional time was granted therefor, and thereupon the complaint was dismissed, and about three and one-half months after the dismissal, motion to vacate the judgment was made, and order denying the motion was affirmed by Appellate Division about 18 months after the dismissal, and the later action was brought about 20 months after the dismissal.
The plaintiffs appealed to the Court of Appeals.
Judgment affirmed, with costs.
All concur.
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Bank of N.Y. Mellon v. Slavin
...705, 819 N.Y.S.2d 872, 853 N.E.2d 243 (2006), Haber v. Telson, 4 A.D.2d 677, 163 N.Y.S.2d 503 (2d Dept. 1957), affd 4 N.Y.2d 687, 171 N.Y.S.2d 83, 148 N.E.2d 300 (1958) and Jelinek v. City of New York, 25 A.D.2d 425, 266 N.Y.S.2d 766 (1st Dept. 1966) —are factually distinguishable and inapp......
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MTGLQ Investors, LP v. Zaveri
...819 N.Y.S.2d 872, 853 N.E.2d 243 [2006] ), ( Haber v. Telson , 4 A.D.2d 677, 163 N.Y.S.2d 503 [2d Dept. 1957], affd 4 N.Y.2d 687, 171 N.Y.S.2d 83, 148 N.E.2d 300 [1958] ) and Jelinek v. City of New York , 25 A.D.2d 425, 266 N.Y.S.2d 766 (1st Dept. 1966) —are factually distinguishable and in......
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MTGLQ Inv'rs v. Zaveri
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Miller v. Hainzl
... ... Haber v. Telson, 4 A.D.2d 677, 163 N.Y.S.2d 503, affirmed 4 N.Y.2d 687, 171 N .Y.S.2d 83; Scott v. Rosenwitz, Sup., 213 N.Y.S.2d 196; Friedman v. Long ... ...