Kennelly v. Charleston Auto Sales, Inc.

Appellate Division of the Supreme Court of New York

Kennelly v. Charleston Auto Sales, Inc.

40 A.D.2d 679, 336 N.Y.S.2d 192, 1972 N.Y. App. Div. LEXIS 3839

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

DecidedOctober 2, 1972

StatusPublished

This text of 40 A.D.2d 679 (Kennelly v. Charleston Auto Sales, 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

Kennelly v. Charleston Auto Sales, Inc., 40 A.D.2d 679, 336 N.Y.S.2d 192, 1972 N.Y. App. Div. LEXIS 3839 (N.Y. Ct. App. 1972).

Pincite

Opinion

In an action to recover damages for personal injuries, defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County, dated November 3, 1971 as, in granting their motion to dismiss the action for failure to serve a complaint, did so only [680]*680conditionally, i.e., only if plaintiff were to fail to serve a complaint within a stated time. Order reversed insofar as appealed from, on the law and in the exercise of discretion, with $10 costs and disbursements, with the result that the granting of defendants’ motion is absolute. Plaintiff failed to serve any affidavit in opposition to the motion explanatory of his default in serving his complaint and showing a meritorious cause of action. Moreover, he failed to make any motion to open his default in the service of a complaint. Accordingly, the motion to dismiss should have been granted unconditionally (Crudele v. Fishman Co., 36 A D 2d 631; Salinger v. Hollander, 19 A D 2d 559; Powell v. Becker Truck Renting Corp., 20 A D 2d 573). Munder, Acting P. J., Latham, Gulotta, Christ and Benjamin, JJ., concur.

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In an action to recover damages for personal injuries, defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County, dated November 3, 1971 as, in granting their motion to dismiss the action for failure to serve a complaint, did so only [680]*680conditionally, i.e., only if plaintiff were to fail to serve a complaint within a stated time. Order reversed insofar as appealed from, on the law and in the exercise of discretion, with $10 costs and disbursements, with the result that the granting of defendants’ motion is absolute. Plaintiff failed to serve any affidavit in opposition to the motion explanatory of his default in serving his complaint and showing a meritorious cause of action. Moreover, he failed to make any motion to open his default in the service of a complaint. Accordingly, the motion to dismiss should have been granted unconditionally (Crudele v. Fishman Co., 36 A D 2d 631; Salinger v. Hollander, 19 A D 2d 559; Powell v. Becker Truck Renting Corp., 20 A D 2d 573). Munder, Acting P. J., Latham, Gulotta, Christ and Benjamin, JJ., concur.

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Bluebook (online)

40 A.D.2d 679, 336 N.Y.S.2d 192, 1972 N.Y. App. Div. LEXIS 3839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennelly-v-charleston-auto-sales-inc-nyappdiv-1972.