Burgess v. Long Island Railroad

Appellate Division of the Supreme Court of New York

Burgess v. Long Island Railroad

38 A.D.2d 750, 329 N.Y.S.2d 619, 1972 N.Y. App. Div. LEXIS 5479

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

DecidedJanuary 31, 1972

StatusPublished

This text of 38 A.D.2d 750 (Burgess v. Long Island Railroad) 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

Burgess v. Long Island Railroad, 38 A.D.2d 750, 329 N.Y.S.2d 619, 1972 N.Y. App. Div. LEXIS 5479 (N.Y. Ct. App. 1972).

Pincite

Opinion

In an action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Suffolk County, entered July 29, 1971, which granted its motion, pursuant to CPLR 3012 (subd. [b]), to dismiss the action, unless plaintiffs had served a complaint within 10 days after the date of the decision. Order modified by striking therefrom everything following the words that the motion is “ granted ”. As so modified, order affirmed, with $10 costs and disbursements to appellant. The record discloses that plaintiffs failed to serve their complaint for a period of nine months after a demand therefor by defendant. Plaintiffs also defaulted upon the motion by defendant to dismiss the action, offering neither an excuse for their failure to serve the complaint nor an affidavit of merits. Under these circumstances, Special Term abused its discretion in granting the motion to dismiss conditionally (Wemple v. Cador et, 29 A D 2d 1033; Schwartz v. National Fire Ins. Co. of Hartford, 25 A D 2d 727; Waldron v. Ward, 24 A D 2d 470). Rabin, P. J., Hopkins, Martuscello, Latham and Gulotta, JJ., concur,

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In an action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Suffolk County, entered July 29, 1971, which granted its motion, pursuant to CPLR 3012 (subd. [b]), to dismiss the action, unless plaintiffs had served a complaint within 10 days after the date of the decision. Order modified by striking therefrom everything following the words that the motion is “ granted ”. As so modified, order affirmed, with $10 costs and disbursements to appellant. The record discloses that plaintiffs failed to serve their complaint for a period of nine months after a demand therefor by defendant. Plaintiffs also defaulted upon the motion by defendant to dismiss the action, offering neither an excuse for their failure to serve the complaint nor an affidavit of merits. Under these circumstances, Special Term abused its discretion in granting the motion to dismiss conditionally (Wemple v. Cador et, 29 A D 2d 1033; Schwartz v. National Fire Ins. Co. of Hartford, 25 A D 2d 727; Waldron v. Ward, 24 A D 2d 470). Rabin, P. J., Hopkins, Martuscello, Latham and Gulotta, JJ., concur,

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Bluebook (online)

38 A.D.2d 750, 329 N.Y.S.2d 619, 1972 N.Y. App. Div. LEXIS 5479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burgess-v-long-island-railroad-nyappdiv-1972.