Conner v. Brasserie, Inc.

Appellate Division of the Supreme Court of New York

Conner v. Brasserie, Inc.

136 A.D.2d 481, 523 N.Y.S.2d 118, 1988 N.Y. App. Div. LEXIS 251

Appellate Division of the Supreme Court of the State of New York·Decided January 14, 1988·Published·Cited by 5 cases

Opinion

—Order, Supreme Court, New York County (Burton S. Sherman, J.), entered April 15, 1987, which granted defendant’s motion pursuant to CPLR 3216 to dismiss the complaint for plaintiff’s failure to prosecute, unanimously reversed, on the law and the facts and in the exercise of discretion, and the motion is denied, without costs.

In light of the strong policy favoring disposition of actions on their merits (see, e.g., Collado v Quinones, 52 AD2d 534, 535), plaintiff’s service, in response to defendant’s 90-day notice, of the note of issue with statement of readiness one day late, coupled with the subsequent delay of, at most, several days in filing said document with the court, does not warrant the drastic remedy of dismissal, especially where defendant cannot show prejudice. (See, Paoli v Sullcraft Mfg. Co., 104 AD2d 333, 334.) Plaintiff’s verified complaint and bill of particulars constitute a sufficient showing of merit for purposes of this motion. (CPLR 105 [t]; see, Saleh v Paratore, 60 NY2d 851, 853.) Concur—Kupferman, J. P., Milonas, Kassal, Rosenberger and Ellerin, JJ.

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—Order, Supreme Court, New York County (Burton S. Sherman, J.), entered April 15, 1987, which granted defendant’s motion pursuant to CPLR 3216 to dismiss the complaint for plaintiff’s failure to prosecute, unanimously reversed, on the law and the facts and in the exercise of discretion, and the motion is denied, without costs.

In light of the strong policy favoring disposition of actions on their merits (see, e.g., Collado v Quinones, 52 AD2d 534, 535), plaintiff’s service, in response to defendant’s 90-day notice, of the note of issue with statement of readiness one day late, coupled with the subsequent delay of, at most, several days in filing said document with the court, does not warrant the drastic remedy of dismissal, especially where defendant cannot show prejudice. (See, Paoli v Sullcraft Mfg. Co., 104 AD2d 333, 334.) Plaintiff’s verified complaint and bill of particulars constitute a sufficient showing of merit for purposes of this motion. (CPLR 105 [t]; see, Saleh v Paratore, 60 NY2d 851, 853.) Concur—Kupferman, J. P., Milonas, Kassal, Rosenberger and Ellerin, JJ.

Conner v. Brasserie, Inc., 136 A.D.2d 481, 523 N.Y.S.2d 118, 1988 N.Y. App. Div. LEXIS 251 (N.Y. Ct. App. 1988).

Pincite

136 A.D.2d 481 (Conner v. Brasserie, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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