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Martinez v. New York City Transit Authority

Appellate Division of the Supreme Court of New York, First Department
May 21, 1992
183 A.D.2d 587 (N.Y. App. Div. 1992)

Opinion

May 21, 1992

Appeal from the Supreme Court, Bronx County (Lewis Friedman, J.).


While we concur fully in the Motion Court's condemnation of plaintiffs' counsel's derelictions, on balance, the plaintiffs should be afforded their day in court despite the egregious law office failure of their attorneys. On this record, the presumption of abandonment is rebutted. On the reargument/renewal motion, counsel did submit additional evidence on the merits of the case and the etiology of the law office failure. Thus, the motion can be viewed as a motion to renew and not merely reargue (compare, Foley v. Roche, 68 A.D.2d 558, 567-568; Oppenheimer Co. v. Oppenheim, Appel, Dixon Co., 173 A.D.2d 203). The record establishes that the law office failure was not willful (see, Massachusetts Bay Ins. Co. v. Guardian Escrow Corp., 171 A.D.2d 615), that the action is prima facie meritorious, and that defendant was not prejudiced by the delay (see, Pirnak v Savino, 96 A.D.2d 857).

Concur — Murphy, P.J., Sullivan, Rosenberger and Kassal, JJ.


Summaries of

Martinez v. New York City Transit Authority

Appellate Division of the Supreme Court of New York, First Department
May 21, 1992
183 A.D.2d 587 (N.Y. App. Div. 1992)
Case details for

Martinez v. New York City Transit Authority

Case Details

Full title:GABRIEL MARTINEZ et al., Appellants, v. NEW YORK CITY TRANSIT AUTHORITY…

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

Date published: May 21, 1992

Citations

183 A.D.2d 587 (N.Y. App. Div. 1992)
584 N.Y.S.2d 8

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