Donnelly v. Pepicelli

Appellate Division of the Supreme Court of New York

Donnelly v. Pepicelli

90 A.D.2d 955, 456 N.Y.S.2d 543, 1982 N.Y. App. Div. LEXIS 19231

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

DecidedNovember 9, 1982

StatusPublished

Cited by1 cases

This text of 90 A.D.2d 955 (Donnelly v. Pepicelli) 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

Donnelly v. Pepicelli, 90 A.D.2d 955, 456 N.Y.S.2d 543, 1982 N.Y. App. Div. LEXIS 19231 (N.Y. Ct. App. 1982).

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Opinions

Order reversed, with costs, and motion granted. Memorandum: Special Term granted defendant’s motion to dismiss the action for failure to serve a complaint unless plaintiff served a complaint within 20 days of its order. In making the order conditional, it abused its discretion (see Saraceno v Piscopo, 16 AD2d 735). Plaintiff’s moving papers contain no competent evidence of merit to the action and his excuse, that discovery was necessary to draft a complaint, is no more than a law office failure under the circumstances presented (see Cohen v First Nat. City Bank, 75 AD2d 837, affd 52 NY2d 863; Caton v Schenectady Gazette, 82 AD2d 949; and cf. Niesluchowski v Clute Motor Co., 85 AD2d 47). All concur, except Callahan, J., who dissents and votes to affirm, in the following memorandum.

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Order reversed, with costs, and motion granted. Memorandum: Special Term granted defendant’s motion to dismiss the action for failure to serve a complaint unless plaintiff served a complaint within 20 days of its order. In making the order conditional, it abused its discretion (see Saraceno v Piscopo, 16 AD2d 735). Plaintiff’s moving papers contain no competent evidence of merit to the action and his excuse, that discovery was necessary to draft a complaint, is no more than a law office failure under the circumstances presented (see Cohen v First Nat. City Bank, 75 AD2d 837, affd 52 NY2d 863; Caton v Schenectady Gazette, 82 AD2d 949; and cf. Niesluchowski v Clute Motor Co., 85 AD2d 47). All concur, except Callahan, J., who dissents and votes to affirm, in the following memorandum.

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Bluebook (online)

90 A.D.2d 955, 456 N.Y.S.2d 543, 1982 N.Y. App. Div. LEXIS 19231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donnelly-v-pepicelli-nyappdiv-1982.

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