Davila v. Galarza

Appellate Division of the Supreme Court of New York

Davila v. Galarza

221 A.D.2d 308, 638 N.Y.S.2d 475, 1995 N.Y. App. Div. LEXIS 11596

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

DecidedNovember 6, 1995

StatusPublished

Cited by7 cases

This text of 221 A.D.2d 308 (Davila v. Galarza) 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

Davila v. Galarza, 221 A.D.2d 308, 638 N.Y.S.2d 475, 1995 N.Y. App. Div. LEXIS 11596 (N.Y. Ct. App. 1995).

Pincite

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Huttner, J.), dated July 14, 1994, which granted the defendant’s motion to restore the case to the calendar and, upon doing so, dismissed the complaint for failure to prosecute pursuant to CPLR 3404.

Ordered that the order is reversed, on the law, with costs, the defendant’s motion is denied, and the complaint is reinstated.

Since there is no evidence that a note of issue was filed in the action placing the action on the court’s calendar (see, CPLR 3402), the court incorrectly relied on CPLR 3404 in dismissing the action. Rather, the provision governing dismissal of this action was CPLR 3216 (see, Seigel, NY Prac §§ 375, 376, at 556-[309]*309561 [2d ed]). However, since no demand to file a note of issue within 90 days was served, dismissal under CPLR 3216 would also have been improper (see, CPLR 3216 [b]). The contention of the defendant and Motor Vehicle Accident Indemnification Corporation that the complaint should have been dismissed on the alternative ground that the plaintiff settled with a codefendant is without merit (see, Insurance Law § 5210; White v Ramirez, 159 Mise 2d 925). Sullivan, J. P., Thompson, Copertino, Krausman and Florio, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Huttner, J.), dated July 14, 1994, which granted the defendant’s motion to restore the case to the calendar and, upon doing so, dismissed the complaint for failure to prosecute pursuant to CPLR 3404.

Ordered that the order is reversed, on the law, with costs, the defendant’s motion is denied, and the complaint is reinstated.

Since there is no evidence that a note of issue was filed in the action placing the action on the court’s calendar (see, CPLR 3402), the court incorrectly relied on CPLR 3404 in dismissing the action. Rather, the provision governing dismissal of this action was CPLR 3216 (see, Seigel, NY Prac §§ 375, 376, at 556-[309]*309561 [2d ed]). However, since no demand to file a note of issue within 90 days was served, dismissal under CPLR 3216 would also have been improper (see, CPLR 3216 [b]). The contention of the defendant and Motor Vehicle Accident Indemnification Corporation that the complaint should have been dismissed on the alternative ground that the plaintiff settled with a codefendant is without merit (see, Insurance Law § 5210; White v Ramirez, 159 Mise 2d 925). Sullivan, J. P., Thompson, Copertino, Krausman and Florio, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

221 A.D.2d 308, 638 N.Y.S.2d 475, 1995 N.Y. App. Div. LEXIS 11596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davila-v-galarza-nyappdiv-1995.

Opinion

Related

Cite This Page — Counsel Stack