decided: April 18, 1968.
JOSEPH DI RUSSO, APPELLANT,
DANIEL KRAVITZ, RESPONDENT
Di Russo v. Kravitz, 27 A.D.2d 926, 927, affirmed.
Concur: Chief Judge Fuld and Judges Burke, Scileppi, Bergan and Jasen. Judges Keating and Breitel dissent.
Orders affirmed, with costs, in the following memorandum: To permit plaintiff to recover after he deliberately and willfully submitted a false affidavit to mislead the court would place a premium on such reprehensible and illegal conduct.
Plaintiff's false affidavit was used to defeat defendant's right to a dismissal of the action. Such grievous misconduct offends against fundamental concepts of the true administration of justice.
Defendant's motion for renewal of the motion to dismiss was promptly made upon the discovery of the fraud during trial and before the case was concluded and a final determination rendered.
Under these circumstances, the Appellate Division did not abuse its discretion in granting said motion nunc pro tunc. Judges Keating and Breitel dissent and vote to reverse and grant a new trial on the ground that, as a matter of law, plaintiff should not be denied his $75,000 judgment because of his admittedly reprehensible conduct in filing a false affidavit on an earlier practice motion (cf. Peters v. Berkeley, 219 App. Div. 261, 263-264).
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