Heller v. Heller

Appellate Division of the Supreme Court of New York

Heller v. Heller

41 A.D.2d 612, 340 N.Y.S.2d 460, 1973 N.Y. App. Div. LEXIS 5143

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

DecidedFebruary 13, 1973

StatusPublished

This text of 41 A.D.2d 612 (Heller v. Heller) 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

Heller v. Heller, 41 A.D.2d 612, 340 N.Y.S.2d 460, 1973 N.Y. App. Div. LEXIS 5143 (N.Y. Ct. App. 1973).

Pincite

Opinion

Order,-Supreme Court, New York County, entered on June. 23, 1972, .which granted plaintiff’s application to serve, a supplemental - complaint, unanimously affirmed,, without1 costs, and without disbursements. ■ Special- Term properly afforded plaintiff the opportunity to plead her causes without undue circum-. scription. Appellant contends that by granting the motion, he has been prejudiced by the resultant delay and further, that the court ineffectually sought, to preserve his right to move for dismissal if plaintiff continued-to delay. He points to CPLR 3216 (subd. [b]) which provides that a motion fo.dismiss may not be. made for a period of one year and 45 days from the joinder of issue. The order appealed from grants defendant leave to apply, for dismissal in. the •event plaintiff fails to proceed'to trial expeditiously. We hold that, in so doing the court imposed a valid condition to the .service of the supplemental complaint. -We reiterate what we said in this case more than one year.ago (38 A D 2d 526), that this action should proceed to trial promptly. Plaintiff should' proceed expeditiously with .the trial of the action or face dismissal. Concur — MeGivern, J. P., Nunez, Murphy, Capozzoli arid Mácken, JJ. .

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Order,-Supreme Court, New York County, entered on June. 23, 1972, .which granted plaintiff’s application to serve, a supplemental - complaint, unanimously affirmed,, without1 costs, and without disbursements. ■ Special- Term properly afforded plaintiff the opportunity to plead her causes without undue circum-. scription. Appellant contends that by granting the motion, he has been prejudiced by the resultant delay and further, that the court ineffectually sought, to preserve his right to move for dismissal if plaintiff continued-to delay. He points to CPLR 3216 (subd. [b]) which provides that a motion fo.dismiss may not be. made for a period of one year and 45 days from the joinder of issue. The order appealed from grants defendant leave to apply, for dismissal in. the •event plaintiff fails to proceed'to trial expeditiously. We hold that, in so doing the court imposed a valid condition to the .service of the supplemental complaint. -We reiterate what we said in this case more than one year.ago (38 A D 2d 526), that this action should proceed to trial promptly. Plaintiff should' proceed expeditiously with .the trial of the action or face dismissal. Concur — MeGivern, J. P., Nunez, Murphy, Capozzoli arid Mácken, JJ. .

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Bluebook (online)

41 A.D.2d 612, 340 N.Y.S.2d 460, 1973 N.Y. App. Div. LEXIS 5143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heller-v-heller-nyappdiv-1973.