Kull v. City of New York

Appellate Division of the Supreme Court of New York

Kull v. City of New York

31 A.D.2d 638, 295 N.Y.S.2d 959, 1968 N.Y. App. Div. LEXIS 2762

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

DecidedDecember 9, 1968

StatusPublished

This text of 31 A.D.2d 638 (Kull v. City of New York) 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.

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Kull v. City of New York, 31 A.D.2d 638, 295 N.Y.S.2d 959, 1968 N.Y. App. Div. LEXIS 2762 (N.Y. Ct. App. 1968).

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Opinion

—■ Appeal from an order of the Supreme Court, Queens County, dated January 2, 1968, which granted defendant’s motion to dismiss plaintiffs’ complaint oñ the ground of general delay in prosecution of the action. Order reversed, on the law, without costs, and motion denied, without costs. The findings of fact below are affirmed. We have held that CPLR 3216, as amended (L. 1967, ch. 770, eff. Sept. 1, 1967), shall be applied to all appeals reaching us after that effective date. Since a note of issue was served and filed prior to the service of the notice of motion, no dismissal could be had under CPLR 3216. Insofar as this holding is inconsistent with Cohn v. Borchard Affiliations (30 A D 2d 74), we choose not to follow that case. It is our determination that the provisions of CPLR 3216 are constitutional (N. Y. Const., art. VI, § 30; Johnson v. Parrow, 56 Misc 2d 863). Brennan, Acting P. J., Rabin, Benjamin, Munder and Martuseello, JJ., concur.

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—■ Appeal from an order of the Supreme Court, Queens County, dated January 2, 1968, which granted defendant’s motion to dismiss plaintiffs’ complaint oñ the ground of general delay in prosecution of the action. Order reversed, on the law, without costs, and motion denied, without costs. The findings of fact below are affirmed. We have held that CPLR 3216, as amended (L. 1967, ch. 770, eff. Sept. 1, 1967), shall be applied to all appeals reaching us after that effective date. Since a note of issue was served and filed prior to the service of the notice of motion, no dismissal could be had under CPLR 3216. Insofar as this holding is inconsistent with Cohn v. Borchard Affiliations (30 A D 2d 74), we choose not to follow that case. It is our determination that the provisions of CPLR 3216 are constitutional (N. Y. Const., art. VI, § 30; Johnson v. Parrow, 56 Misc 2d 863). Brennan, Acting P. J., Rabin, Benjamin, Munder and Martuseello, JJ., concur.

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Bluebook (online)

31 A.D.2d 638, 295 N.Y.S.2d 959, 1968 N.Y. App. Div. LEXIS 2762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kull-v-city-of-new-york-nyappdiv-1968.

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