Jones v. TSS Seedman's Inc.

Appellate Division of the Supreme Court of New York

Jones v. TSS Seedman's Inc.

131 A.D.2d 728, 516 N.Y.S.2d 786, 1987 N.Y. App. Div. LEXIS 48184

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

DecidedJune 22, 1987

StatusPublished

Cited by2 cases

This text of 131 A.D.2d 728 (Jones v. TSS Seedman's Inc.) 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

Jones v. TSS Seedman's Inc., 131 A.D.2d 728, 516 N.Y.S.2d 786, 1987 N.Y. App. Div. LEXIS 48184 (N.Y. Ct. App. 1987).

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Opinion

In an action to recover damages, inter alia, for assault, battery and false arrest, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated August 21, 1985, as conditionally granted their motion to dismiss the action pursuant to CPLR 3012 (b) unless the plaintiff served a complaint within 20 days after service of a copy of the order with notice of entry upon the plaintiff’s attorney.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the defendants’ motion to dismiss the action is granted unconditionally.

We have no occasion to address whether the plaintiff was justified in failing to serve a complaint pursuant to a demand served over 18 months prior to the motion to dismiss (see, CPLR 3012 [b]). In response to the motion, the plaintiff submitted only the affirmation of her attorney (cf., CPLR 3012 [d]), who made no reference to the merits or to the nature of the plaintiff’s case (cf., Mufalli v Ford Motor Co., 105 AD2d 642). Because of this deficiency, it was error as a matter of law not to grant the motion unconditionally (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904; Stolowitz v Mt. Sinai Hosp., 60 NY2d 685). Mangano, J. P., Niehoff, Spatt and Harwood, JJ., concur.

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In an action to recover damages, inter alia, for assault, battery and false arrest, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated August 21, 1985, as conditionally granted their motion to dismiss the action pursuant to CPLR 3012 (b) unless the plaintiff served a complaint within 20 days after service of a copy of the order with notice of entry upon the plaintiff’s attorney.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the defendants’ motion to dismiss the action is granted unconditionally.

We have no occasion to address whether the plaintiff was justified in failing to serve a complaint pursuant to a demand served over 18 months prior to the motion to dismiss (see, CPLR 3012 [b]). In response to the motion, the plaintiff submitted only the affirmation of her attorney (cf., CPLR 3012 [d]), who made no reference to the merits or to the nature of the plaintiff’s case (cf., Mufalli v Ford Motor Co., 105 AD2d 642). Because of this deficiency, it was error as a matter of law not to grant the motion unconditionally (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904; Stolowitz v Mt. Sinai Hosp., 60 NY2d 685). Mangano, J. P., Niehoff, Spatt and Harwood, JJ., concur.

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Bluebook (online)

131 A.D.2d 728, 516 N.Y.S.2d 786, 1987 N.Y. App. Div. LEXIS 48184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-tss-seedmans-inc-nyappdiv-1987.

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