Goldberg v. Schwartz

Appellate Division of the Supreme Court of New York

Goldberg v. Schwartz

29 A.D.2d 873, 288 N.Y.S.2d 428, 1968 N.Y. App. Div. LEXIS 4443

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

DecidedMarch 11, 1968

StatusPublished

This text of 29 A.D.2d 873 (Goldberg v. Schwartz) 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

Goldberg v. Schwartz, 29 A.D.2d 873, 288 N.Y.S.2d 428, 1968 N.Y. App. Div. LEXIS 4443 (N.Y. Ct. App. 1968).

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Opinion

Order of the Supreme Court, Queens County, dated December 16, 1966, which granted defendants’ motion to dismiss the complaint on the ground of general delay, reversed, without costs, and motion denied, without costs. We have held that CPLR 3216 (as amd. by L. 1967, ch. 77Ó, eff. Sept. 1, 1967), shall be applied to all appeals reaching us after that effective date. Therefore defendants should have given the 45-day notice required by the statute, as amended, as a condition precedent to the motion for dismissal.- No such notice was served by them. Moreover, on this record there was no persuasive showing by defendants that the delay was excessive or inexcusable, that prosecution of the action had been abandoned by plaintiff, or that the delay was prejudicial to defendants; in addition, since the Statute of Limitations has run, dismissal of the action would result in the loss of whatever right of action plaintiff may have against these defendants (see, Terasakav. Rehfield, 28 A D 2d 1011; Kaprow V. Jacoby, 28 A D 2d 722). Beldoek, P. J., Christ, Benjamin, Munder and Martuscello, JJ., concur.

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Order of the Supreme Court, Queens County, dated December 16, 1966, which granted defendants’ motion to dismiss the complaint on the ground of general delay, reversed, without costs, and motion denied, without costs. We have held that CPLR 3216 (as amd. by L. 1967, ch. 77Ó, eff. Sept. 1, 1967), shall be applied to all appeals reaching us after that effective date. Therefore defendants should have given the 45-day notice required by the statute, as amended, as a condition precedent to the motion for dismissal.- No such notice was served by them. Moreover, on this record there was no persuasive showing by defendants that the delay was excessive or inexcusable, that prosecution of the action had been abandoned by plaintiff, or that the delay was prejudicial to defendants; in addition, since the Statute of Limitations has run, dismissal of the action would result in the loss of whatever right of action plaintiff may have against these defendants (see, Terasakav. Rehfield, 28 A D 2d 1011; Kaprow V. Jacoby, 28 A D 2d 722). Beldoek, P. J., Christ, Benjamin, Munder and Martuscello, JJ., concur.

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Bluebook (online)

29 A.D.2d 873, 288 N.Y.S.2d 428, 1968 N.Y. App. Div. LEXIS 4443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goldberg-v-schwartz-nyappdiv-1968.