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BEVERLY E. BRENNAN v. TULLY & DI NAPOLI (06/10/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


June 10, 1969

BEVERLY E. BRENNAN
v.
TULLY & DI NAPOLI, INC.

Concur -- McGivern, J. P., McNally and Steuer, JJ.; Nunez, J., dissents.

Motion for leave to appeal as a poor person denied as moot in view of the decision on Motion 696 [Case No. 17].

Nunez, J., dissents in a memorandum.

I dissent. Appellant is being penalized for her lack of financial resources and consequent inability to timely perfect the appeal in this death case. In response to the motion to dismiss, appellant has submitted her affidavit explaining why she was unable to perfect the appeal, and her attorney's affidavit showing merit. The grounds urged as error are the trial court's improper refusal to admit evidence of prior accidents at the same location, and refusal to allow counsel for appellant to select his own jury. The merits are thus proffered and it cannot be said, at this point of the proceeding, that the appeal is without any basis. Simply put, the reason for the delay is alleged to be appellant's inability to timely perfect the appeal due to lack of funds. In this regard her affidavit is quite candid. Appellant is the wife and administratrix of the decedent's estate. While she has remarried, her husband does not earn sufficient to help her with the appeal; her meager income is used for the maintenance of her four minor children of the prior marriage to the decedent. I believe this affidavit is sufficient to show the appellant's status as being entitled to poor person relief, and to excuse her delay in prosecuting the appeal. The facts of this case, the nature of the cause of action, and the asserted merit to the appeal, all indicate that the reason for the delay in perfecting the appeal is as appellant claims. For these reasons, I would deny the motion to dismiss and permit the cross-application for poor person relief to the extent requested, and extend time to perfect the appeal to the September 1969 Term of this court.

19690610

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