Korta v. Rausch Equipment Corp.

Appellate Division of the Supreme Court of New York

Korta v. Rausch Equipment Corp.

73 A.D.2d 824, 423 N.Y.S.2d 750, 1979 N.Y. App. Div. LEXIS 14711

Appellate Division of the Supreme Court of the State of New York·Decided December 14, 1979·Published

Opinion

Order unanimously reversed, without costs, and motion denied. Memorandum: To resist a motion to dismiss for failure to serve a complaint after a demand plaintiff must (1) show that the delay is excusable and (2) submit proof by one having knowledge that the cause of action is meritorious (Dobbins v County of Erie, 65 AD2d 934, 935; Allen v Berton, 55 AD2d 1049). Plaintiff has failed to satisfy either of these requirements and the court abused its discretion in granting reargument and vacating its original order dismissing the action. (Appeal from order of Erie Supreme Court—reargument of motion to dismiss.) Present—Cardamone, J. P., Simons, Schnepp, Doerr and Witmer, JJ.

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Order unanimously reversed, without costs, and motion denied. Memorandum: To resist a motion to dismiss for failure to serve a complaint after a demand plaintiff must (1) show that the delay is excusable and (2) submit proof by one having knowledge that the cause of action is meritorious (Dobbins v County of Erie, 65 AD2d 934, 935; Allen v Berton, 55 AD2d 1049). Plaintiff has failed to satisfy either of these requirements and the court abused its discretion in granting reargument and vacating its original order dismissing the action. (Appeal from order of Erie Supreme Court—reargument of motion to dismiss.) Present—Cardamone, J. P., Simons, Schnepp, Doerr and Witmer, JJ.

Korta v. Rausch Equipment Corp., 73 A.D.2d 824, 423 N.Y.S.2d 750, 1979 N.Y. App. Div. LEXIS 14711 (N.Y. Ct. App. 1979).

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Opinion

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