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Another silly appealOctober 12, 2017

Narvaez v Sammartino, 2017 NY Slip Op 07187 (1st Dept. 2017)

Put this one in the file for “s” for silly.

“The motion court properly exercised its discretion under CPLR 2001 in granting plaintiff’s motion to renew, as the record shows that on the prior motion, plaintiff’s opposition was not considered due to counsel’s inadvertent failure to comply with the court’s part rules. Counsel’s error did not cause significant prejudice, and plaintiff has been ordered to reimburse defendants for any resulting costs and fees incurred (see CPLR 2001; DePompo-Seff v Genovese Drug Stores, Inc., 13 AD3d 109 [1st Dept 2004]).”

“Venue was properly laid in Bronx County, as plaintiff resided there when the complaint was filed (see CPLR 503[a]; Cardona v Aggressive Heating, 180 AD2d 572, 573 [1st Dept 1992]).”

For starters, the motion should not have been denied because violation of a “part rule” whether it be 1) Non-hard copy; or 2) Non tabbed exhibits, should never form the basis of a denial of the motion.  The “default” was properly vacated and the plaintiff resided in the Bronx when the action was commenced.

What compelling argument can be made that someone who lives in Suffolk cannot testify in Bronx?  Clearly defendant would rather have a Suffolk County jury than a Bronx jury…  Can we just call this what it is?

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