Lella v. City of New York

Appellate Division of the Supreme Court of New York

Lella v. City of New York

79 A.D.2d 514, 433 N.Y.S.2d 458, 1980 N.Y. App. Div. LEXIS 13823

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

DecidedDecember 2, 1980

StatusPublished

This text of 79 A.D.2d 514 (Lella 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.

Bluebook

Lella v. City of New York, 79 A.D.2d 514, 433 N.Y.S.2d 458, 1980 N.Y. App. Div. LEXIS 13823 (N.Y. Ct. App. 1980).

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Opinion

Order, Supreme Court, New York County, entered February 9, 1979, which granted plaintiff’s motion to compel the defendant to accept service of the complaint and denied defendant’s cross motion to dismiss the action pursuant to CPLR 3012, unanimously reversed, on the law, without costs and without disbursements; plaintiff’s motion denied and defendant’s cross motion to dismiss the action granted. Defendant did not specifically state in an affidavit or affirmation that it made a demand for the complaint. It did so state in the outline of this action’s procedural history contained in its memorandum of law, to wit, that “on July 25, 1975, the defendant served a notice of appearance and demand for the complaint.” This outline of the action’s procedural history was incorporated by reference in the affirmation of an assistant corporation counsel of defendant city submitted in support of the defendant’s cross motion, as follows: “The procedural history of this action and legal support for the position of the defendant are contained in the amended Memorandum of Law.” Under these circumstances, and in light of the inadequate excuse for the delay in serving the complaint, and the weak showing of merit, it was error for Special Term to permit plaintiff to proceed against the defendant (see Barasch v Micucci, 49 NY2d 594). Plaintiff’s motion seeking leave to supplement her brief is denied. Concur—Fein, J. P., Sandler, Ross, Markewich and Lupiano, JJ.

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Order, Supreme Court, New York County, entered February 9, 1979, which granted plaintiff’s motion to compel the defendant to accept service of the complaint and denied defendant’s cross motion to dismiss the action pursuant to CPLR 3012, unanimously reversed, on the law, without costs and without disbursements; plaintiff’s motion denied and defendant’s cross motion to dismiss the action granted. Defendant did not specifically state in an affidavit or affirmation that it made a demand for the complaint. It did so state in the outline of this action’s procedural history contained in its memorandum of law, to wit, that “on July 25, 1975, the defendant served a notice of appearance and demand for the complaint.” This outline of the action’s procedural history was incorporated by reference in the affirmation of an assistant corporation counsel of defendant city submitted in support of the defendant’s cross motion, as follows: “The procedural history of this action and legal support for the position of the defendant are contained in the amended Memorandum of Law.” Under these circumstances, and in light of the inadequate excuse for the delay in serving the complaint, and the weak showing of merit, it was error for Special Term to permit plaintiff to proceed against the defendant (see Barasch v Micucci, 49 NY2d 594). Plaintiff’s motion seeking leave to supplement her brief is denied. Concur—Fein, J. P., Sandler, Ross, Markewich and Lupiano, JJ.

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Bluebook (online)

79 A.D.2d 514, 433 N.Y.S.2d 458, 1980 N.Y. App. Div. LEXIS 13823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lella-v-city-of-new-york-nyappdiv-1980.

Opinion

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