Brender v. Bermas

Appellate Division of the Supreme Court of New York

Brender v. Bermas

37 A.D.2d 835, 326 N.Y.S.2d 60, 1971 N.Y. App. Div. LEXIS 3357

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

DecidedOctober 4, 1971

StatusPublished

Cited by3 cases

This text of 37 A.D.2d 835 (Brender v. Bermas) 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

Brender v. Bermas, 37 A.D.2d 835, 326 N.Y.S.2d 60, 1971 N.Y. App. Div. LEXIS 3357 (N.Y. Ct. App. 1971).

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Opinion

In a negligence action to recover damages for personal injuries and loss of consortium, defendant Golder appeals from an order of the Supreme Court, Nassau County, dated July 26, 1968, which denied his motion for an order dismissing the action for failure to prosecute. Order reversed, without costs, on the law and the facts and in the exercise of discretion; motion granted unconditionally; and complaint dismissed. Plaintiffs failed to serve and file a note of issue notwithstanding the service upon them of a demand, pursuant to CPLR 3216, as amended, that they do so within 45 days. The excuse that the attorney handling the matter had died is insufficient, as his death occurred some 42 months after the joinder of issue (during which time no pretrial proceedings were had) and four and one-half months prior to the service of the 45-day demand. Plaintiffs’ offer to have the matter transferred to the District Court did not, under the circumstances, amount to compliance with CPLR 3216 (see Reilly v. Otis Elevator Co., 20 A D 2d 530). The unexcused delay, combined with the failure to submit an affidavit of merits, entitles appellant to an unconditional dismissal of the complaint (Pernise v. Di Giacomo, 25 A D 2d 447). Rabin, P. J., Hopkins, Munder, Latham and Christ, JJ., concur.

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In a negligence action to recover damages for personal injuries and loss of consortium, defendant Golder appeals from an order of the Supreme Court, Nassau County, dated July 26, 1968, which denied his motion for an order dismissing the action for failure to prosecute. Order reversed, without costs, on the law and the facts and in the exercise of discretion; motion granted unconditionally; and complaint dismissed. Plaintiffs failed to serve and file a note of issue notwithstanding the service upon them of a demand, pursuant to CPLR 3216, as amended, that they do so within 45 days. The excuse that the attorney handling the matter had died is insufficient, as his death occurred some 42 months after the joinder of issue (during which time no pretrial proceedings were had) and four and one-half months prior to the service of the 45-day demand. Plaintiffs’ offer to have the matter transferred to the District Court did not, under the circumstances, amount to compliance with CPLR 3216 (see Reilly v. Otis Elevator Co., 20 A D 2d 530). The unexcused delay, combined with the failure to submit an affidavit of merits, entitles appellant to an unconditional dismissal of the complaint (Pernise v. Di Giacomo, 25 A D 2d 447). Rabin, P. J., Hopkins, Munder, Latham and Christ, JJ., concur.

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Bluebook (online)

37 A.D.2d 835, 326 N.Y.S.2d 60, 1971 N.Y. App. Div. LEXIS 3357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brender-v-bermas-nyappdiv-1971.

Opinion

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