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

Appellate Division of the Supreme Court of the State of New York·Decided December 9, 1968·Published

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.

Free access — add to your briefcase to read the full text and ask questions with AI

—■ 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.

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).

Pincite

31 A.D.2d 638 (Kull v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related