Avalon L. L. C. v. Coronet Properties Co.

Appellate Division of the Supreme Court of New York

Avalon L. L. C. v. Coronet Properties Co.

264 A.D.2d 309, 694 N.Y.S.2d 361, 1999 N.Y. App. Div. LEXIS 8604

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 5, 1999

StatusPublished

This text of 264 A.D.2d 309 (Avalon L. L. C. v. Coronet Properties Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Avalon L. L. C. v. Coronet Properties Co., 264 A.D.2d 309, 694 N.Y.S.2d 361, 1999 N.Y. App. Div. LEXIS 8604 (N.Y. Ct. App. 1999).

Pincite

Opinion

Order, Supreme Court, New York County (Beverly Cohen, J.), entered December 11, 1998, which, to the extent appealed from as limited by the briefs, denied defendants’ motion to dismiss the complaint pursuant to CPLR former 306-b (added L 1992, ch 216, § 7; repealed L 1997, ch 476, § 1) for failure to file proof of service and failure to state a claim for relief under the Debtor and Creditor Law, unanimously reversed, on the law, without costs, defendants-appellants’ motion granted and the complaint deemed dismissed, without prejudice. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint as against them.

Given this Court’s October 14, 1997 order (243 AD2d 307) and the November 14, 1997 letter from counsel for plaintiff to counsel for defendants, there is no basis for a finding that [310]*310plaintiff was stayed, either explicitly or implicitly, from completing service by timely filing the requisite returns of service. Thus, pursuant to the provisions of CPLR former 306-b (a), this action “shall be deemed dismissed as to the non-appearing parties] with respect to whom no proof of service has been filed, without prejudice and without costs:” Were we not dismissing the complaint against all defendants for the foregoing reason, we would still dismiss it as to defendants Gloria Dansker and Susan Bogaty for failure to state a cause of action, the complaint being devoid of any allegations which would indicate culpable conduct on their part. Concur — Rosen-berger, J. P., Williams, Andrias, Saxe and Buckley, JJ.

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Order, Supreme Court, New York County (Beverly Cohen, J.), entered December 11, 1998, which, to the extent appealed from as limited by the briefs, denied defendants’ motion to dismiss the complaint pursuant to CPLR former 306-b (added L 1992, ch 216, § 7; repealed L 1997, ch 476, § 1) for failure to file proof of service and failure to state a claim for relief under the Debtor and Creditor Law, unanimously reversed, on the law, without costs, defendants-appellants’ motion granted and the complaint deemed dismissed, without prejudice. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint as against them.

Given this Court’s October 14, 1997 order (243 AD2d 307) and the November 14, 1997 letter from counsel for plaintiff to counsel for defendants, there is no basis for a finding that [310]*310plaintiff was stayed, either explicitly or implicitly, from completing service by timely filing the requisite returns of service. Thus, pursuant to the provisions of CPLR former 306-b (a), this action “shall be deemed dismissed as to the non-appearing parties] with respect to whom no proof of service has been filed, without prejudice and without costs:” Were we not dismissing the complaint against all defendants for the foregoing reason, we would still dismiss it as to defendants Gloria Dansker and Susan Bogaty for failure to state a cause of action, the complaint being devoid of any allegations which would indicate culpable conduct on their part. Concur — Rosen-berger, J. P., Williams, Andrias, Saxe and Buckley, JJ.

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Bluebook (online)

264 A.D.2d 309, 694 N.Y.S.2d 361, 1999 N.Y. App. Div. LEXIS 8604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avalon-l-l-c-v-coronet-properties-co-nyappdiv-1999.