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MATTER INTERMEDIATE ACCOUNTING MARION A. HART ET AL. v. EDWARD KASSNER (03/06/69)
COURT OF APPEALS OF NEW YORK
1969.NY.40742 <http://www.versuslaw.com>; 247 N.E.2d 148; 24 N.Y.2d 158
decided: March 6, 1969.
IN THE MATTER OF THE INTERMEDIATE ACCOUNTING OF MARION A. HART ET AL., AS EXECUTORS OF JAMES A. HART, DECEASED. RESPONDENTS. BARBARA A. HART, APPELLANT; DAVID BLISTEIN, RESPONDENT,v.EDWARD KASSNER, APPELLANT
Matter of Hart, 30 A.D.2d 781, dismissed. Blistein v. Kassner, 29 A.D.2d 916, 31 A.D.2d 600, dismissed.
Cruser & Hills for motion in the above-entitled proceeding.
Lawrence R. Condon opposed in the above-entitled proceeding.
Bartholomew J. O'Rourke, as special guardian, in the above-entitled proceeding.
Beldock Levine & Hoffman for motion in the above-entitled action.
Byrne & Starkey opposed in the above-entitled action.
Author: Per Curiam
Matter of Hart,
Author: Per Curiam
These two motions bring up aspects of the practice provided by the rules adopted by the court effective February 1, 1969. One motion (Hart) is for permission to appeal; the other (Blistein) is for reargument of a prior decision of the court on a motion for permission to appeal (22 N.Y.2d 646).
Subdivision (a) of rule IX (22 NYCRR 500.9 [a]) governing motions for permission to appeal in civil cases requires filing of 20 copies of the moving papers and brief in support of the motion. The form of these papers is governed by rule I (22 NYCRR 500.1).
The brief shall show "that this court has jurisdiction of the motion and of the proposed appeal in that the order or judgment sought to be appealed from is a final determination or comes within the special class of non-final determinations which are appealable by permission of the Court of Appeals (CPLR 5602, [a] ). The brief shall also set forth the questions of law presented, and shall show why such questions merit review by this court, such as that they are novel or of public importance, or involve a conflict with prior decisions of this court or there is a conflict among the Appellate Division. The brief shall identify the particular portions of the record where the questions sought to be reviewed are raised" (rule IX, subd. [a]; 22 NYCRR 500.9 [a] ).
In dealing with motions for reargument rule IX (subd. [b]; 22 NYCRR 500.9 [b]) requires filing 20 copies of the brief on the motion, which shall show "the points claimed to have been overlooked or misapprehended by the court, with proper reference to the particular portions of the record and to the authorities relied upon".
There is a failure in both motions to comply with the requirements of these rules in substantial respects.
The new rules, simplifying the practice in this court and conforming it to modern procedure, specify requirements for papers on motions, as well as on appeals, and the court will enforce compliance with these requirements.
In each case, motion dismissed, without costs, and without prejudice to renewal within 30 days on proper papers.
In Matter of Hart : Motion for leave to appeal dismissed, without costs, and without prejudice to a renewal thereof upon proper papers.
In Blistein v. Kassner : Motion to dismiss appeal taken as of right granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order does not finally determine the action within the meaning of the Constitution.
Motion for reargument of motion for leave to appeal dismissed, without costs, and without prejudice to a renewal thereof within 30 days upon proper papers.