Balancio v. American Optical Corp.

New York Court of Appeals

Balancio v. American Optical Corp.

488 N.E.2d 106, 66 N.Y.2d 750, 497 N.Y.S.2d 360, 1985 N.Y. LEXIS 17644

CourtNew York Court of Appeals

DecidedOctober 24, 1985

StatusPublished

Cited by23 cases

This text of 488 N.E.2d 106 (Balancio v. American Optical Corp.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Balancio v. American Optical Corp., 488 N.E.2d 106, 66 N.Y.2d 750, 497 N.Y.S.2d 360, 1985 N.Y. LEXIS 17644 (N.Y. 1985).

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Opinion

OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. We cannot say as a matter of law that the Appellate Division abused its discretion. Plaintiff also contends for the first time on appeal that the court lacked subject matter jurisdiction because the demand to file a note of issue was not served by registered or certified mail as the rule requires. He does not dispute that he received actual timely notice of the demand. The failure to serve a CPLR 3216 demand by registered or certified mail is a procedural irregularity and, absent a showing of prejudice to a substantial right of a plaintiff, courts should not deny, as jurisdictionally defective, a defendant’s motion to dismiss for neglect to prosecute (see, Beermont Corp. v Yager, 34 AD2d 589; see also, Rumrill v [752]*752Epting, 88 AD2d 1047, 1048, n; compare, Smith v City of Troy, 77 AD2d 691, affd 54 NY2d 890 [incorrect statement of time period under statute]).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander. Taking no part: Judge Titone.

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OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs. We cannot say as a matter of law that the Appellate Division abused its discretion. Plaintiff also contends for the first time on appeal that the court lacked subject matter jurisdiction because the demand to file a note of issue was not served by registered or certified mail as the rule requires. He does not dispute that he received actual timely notice of the demand. The failure to serve a CPLR 3216 demand by registered or certified mail is a procedural irregularity and, absent a showing of prejudice to a substantial right of a plaintiff, courts should not deny, as jurisdictionally defective, a defendant’s motion to dismiss for neglect to prosecute (see, Beermont Corp. v Yager, 34 AD2d 589; see also, Rumrill v [752]*752Epting, 88 AD2d 1047, 1048, n; compare, Smith v City of Troy, 77 AD2d 691, affd 54 NY2d 890 [incorrect statement of time period under statute]).

Concur: Chief Judge Wachtler and Judges Jasen, Meyer, Simons, Kaye and Alexander. Taking no part: Judge Titone.

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Bluebook (online)

488 N.E.2d 106, 66 N.Y.2d 750, 497 N.Y.S.2d 360, 1985 N.Y. LEXIS 17644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/balancio-v-american-optical-corp-ny-1985.

Opinion

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