Freeman's Beverages, Inc. v. National Cash Register Co.

Appellate Division of the Supreme Court of New York

Freeman's Beverages, Inc. v. National Cash Register Co.

50 A.D.2d 1075, 376 N.Y.S.2d 58, 1975 N.Y. App. Div. LEXIS 12102

Appellate Division of the Supreme Court of the State of New York·Decided December 12, 1975·Published·Cited by 2 cases

Opinion

— Order unanimously affirmed, without costs. Memorandum: Plaintiffs first action was dismissed as abandoned pursuant to CPLR 3404. Apparently plaintiff had failed to serve a bill of particulars, although defendant never obtained an order of preclusion. Subsequently, but concededly before expiration of the Statute of Limitations, plaintiff served a new summons together with a complaint which was identical to that of the first action. Defendant’s motion for dismissal of the second complaint on the ground of abandonment of the identical first action was properly denied by Special Term. Abandonment is not a basis for a motion to dismiss (cf. CPLR 3211). "A dismissal of an action pursuant to CPLR 3404 because it has not been restored to the calendar within one year after being marked 'off or struck from the calendar is a dismissal for neglect to prosecute. * * * If the statute of limitations has not run a new action on the same cause is not barred since the dismissal is not on the merits” (4 Weinstein-Korn-Miller, [1076]*1076NY Civ Prac, par 3404.09). (Appeal from order of Oneida Special Term denying motion to dismiss complaint.) Present — Marsh, P. J., Mahoney, Goldman and Del Vecchio, JJ.

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

— Order unanimously affirmed, without costs. Memorandum: Plaintiffs first action was dismissed as abandoned pursuant to CPLR 3404. Apparently plaintiff had failed to serve a bill of particulars, although defendant never obtained an order of preclusion. Subsequently, but concededly before expiration of the Statute of Limitations, plaintiff served a new summons together with a complaint which was identical to that of the first action. Defendant’s motion for dismissal of the second complaint on the ground of abandonment of the identical first action was properly denied by Special Term. Abandonment is not a basis for a motion to dismiss (cf. CPLR 3211). "A dismissal of an action pursuant to CPLR 3404 because it has not been restored to the calendar within one year after being marked 'off or struck from the calendar is a dismissal for neglect to prosecute. * * * If the statute of limitations has not run a new action on the same cause is not barred since the dismissal is not on the merits” (4 Weinstein-Korn-Miller, [1076]*1076NY Civ Prac, par 3404.09). (Appeal from order of Oneida Special Term denying motion to dismiss complaint.) Present — Marsh, P. J., Mahoney, Goldman and Del Vecchio, JJ.

Freeman's Beverages, Inc. v. National Cash Register Co., 50 A.D.2d 1075, 376 N.Y.S.2d 58, 1975 N.Y. App. Div. LEXIS 12102 (N.Y. Ct. App. 1975).

Pincite

50 A.D.2d 1075 (Freeman's Beverages, Inc. v. National Cash Register Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related