Back v. Berck

Appellate Division of the Supreme Court of New York

Back v. Berck

74 A.D.2d 886, 425 N.Y.S.2d 971, 1980 N.Y. App. Div. LEXIS 10680

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

DecidedMarch 24, 1980

StatusPublished

This text of 74 A.D.2d 886 (Back v. Berck) 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

Back v. Berck, 74 A.D.2d 886, 425 N.Y.S.2d 971, 1980 N.Y. App. Div. LEXIS 10680 (N.Y. Ct. App. 1980).

Pincite

Opinion

In a dental malpractice action, defendants appeal from an order of the Supreme Court, Rockland County, dated August 31, 1979, which denied their motion to dismiss the action for failure to serve a timely complaint. Order modified by adding provisions thereto conditioning the denial of the motion upon the payment of a total of $100 by plaintiffs’ counsel to defendants and that if the condition is not complied with then the motion is granted. As so modified, order affirmed, with $50 costs and disbursements payable to defendants. The time for plaintiffs’ counsel to make payment is extended until 20 days after service upon him of a copy of the order to be made hereon, together with notice of entry thereof. The time to serve a complaint is extended until 10 days after payment is made. Under the circumstances, the exercise of discretion in excusing the default in service of a timely complaint and in denying defendants’ motion should have been conditioned upon payment of the aforesaid sum. Hopkins, J. P., Damiani, Titone and Mangano, JJ., concur.

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In a dental malpractice action, defendants appeal from an order of the Supreme Court, Rockland County, dated August 31, 1979, which denied their motion to dismiss the action for failure to serve a timely complaint. Order modified by adding provisions thereto conditioning the denial of the motion upon the payment of a total of $100 by plaintiffs’ counsel to defendants and that if the condition is not complied with then the motion is granted. As so modified, order affirmed, with $50 costs and disbursements payable to defendants. The time for plaintiffs’ counsel to make payment is extended until 20 days after service upon him of a copy of the order to be made hereon, together with notice of entry thereof. The time to serve a complaint is extended until 10 days after payment is made. Under the circumstances, the exercise of discretion in excusing the default in service of a timely complaint and in denying defendants’ motion should have been conditioned upon payment of the aforesaid sum. Hopkins, J. P., Damiani, Titone and Mangano, JJ., concur.

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Bluebook (online)

74 A.D.2d 886, 425 N.Y.S.2d 971, 1980 N.Y. App. Div. LEXIS 10680, Counsel Stack Legal Research, https://law.counselstack.com/opinion/back-v-berck-nyappdiv-1980.