Eichhorst v. Mitchell Gardens Corp.

Appellate Terms of the Supreme Court of New York

Eichhorst v. Mitchell Gardens Corp.

18 Misc. 2d 238, 192 N.Y.S.2d 547, 1959 N.Y. Misc. LEXIS 3459

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 16, 1959

StatusPublished

This text of 18 Misc. 2d 238 (Eichhorst v. Mitchell Gardens Corp.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eichhorst v. Mitchell Gardens Corp., 18 Misc. 2d 238, 192 N.Y.S.2d 547, 1959 N.Y. Misc. LEXIS 3459 (N.Y. Ct. App. 1959).

Pincite

Opinion

Per Curiam.

The question as to whether the note of issue was served before defendant moved to dismiss the action for lack of prosecution cannot be resolved upon the conflicting affidavits submitted herein. Prior service of the note of issue, if established, may be considered in determining the motion. {Richardson v. Erie R. R. Co., 280 App. Div. 958; Nelson v. Ryan, 214 App. Div. 821; Mladinich v. Livingston, 112 App. Div. 181.)

The order should be unanimously reversed on the facts, without costs, and motion to dismiss for lack of prosecution remitted to Special Term for disposition after the .taking of oral proof as to the dates on which the note of issue and motion papers were served.

Concur — Pette, Hart and Brown, JJ.

Order reversed, etc.

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