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Rosenberg v. Rae

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 1971
36 A.D.2d 835 (N.Y. App. Div. 1971)

Opinion

April 12, 1971


In an action to foreclose a real property mortgage, the defendant and third-party plaintiff appealed from an order of the Supreme Court, Kings County, dated March 17, 1969, which (1) denied his motion to restore the case to the calendar for trial and (2) granted the separate motions of the plaintiff and the third-party-defendant to dismiss appellant's counterclaims and third-party complaint for lack of prosecution. On May 25, 1970, this court reversed the order appealed from, granted appellant's motion, restored the case to the calendar of Special Term, Part III, Kings County, and denied the motions of the plaintiff and the third-party defendant. However, on February 18, 1971, the Court of Appeals reversed said determination of this court and remitted the case to this court "for determination of the questions of fact raised" in this court. The Court of Appeals stated in its memorandum that "the Appellate Division did not pass upon the Special Term's exercise of discretion in denying defendant's motion to restore the case to the calendar and remittal must be directed for that purpose" ( Rosenberg v. Rae, 34 A.D.2d 836, revd. 28 N.Y.2d 650). Upon the afore-mentioned remittance the order of the Supreme Court, Kings County, dated March 17, 1969, is modified so as to strike the word "granted" from the second and third decretal paragraphs thereof and to substitute therefor the word "denied". As so modified the order is affirmed, without costs. While we are still of the view that Special Term erred in granting the motions to dismiss for failure to prosecute since the 45-day notice required by CPLR 3216 was not served, upon the remittance directed by the Court of Appeals we have concluded that the Special Term acted within its discretion in denying appellant's motion to restore the case to the calendar. Appellant's undue delay of three and one-half years in moving to restore the case mandates the inference that he abandoned his counterclaims and third-party action when plaintiff's mortgage was satisfied. Moreover, the delay would prove to be seriously prejudicial to plaintiff and third-party defendant Blatt if the counterclaims and third-party action were now to be restored to the calendar. Accordingly, we conclude that there is ample justification for Special Term's discretionary denial of the motion to restore. Hopkins, Acting P.J., Munder, Martuscello, Brennan and Benjamin, JJ., concur.


Summaries of

Rosenberg v. Rae

Appellate Division of the Supreme Court of New York, Second Department
Apr 12, 1971
36 A.D.2d 835 (N.Y. App. Div. 1971)
Case details for

Rosenberg v. Rae

Case Details

Full title:LOUIS J. ROSENBERG, Respondent, v. JOSEPH RAE, Defendant and Third-Party…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 12, 1971

Citations

36 A.D.2d 835 (N.Y. App. Div. 1971)

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