Len v. Consolidated Freightways

Appellate Division of the Supreme Court of New York

Len v. Consolidated Freightways

97 A.D.2d 982, 468 N.Y.S.2d 779, 1983 N.Y. App. Div. LEXIS 20840

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

DecidedNovember 4, 1983

StatusPublished

Cited by1 cases

This text of 97 A.D.2d 982 (Len v. Consolidated Freightways) 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

Len v. Consolidated Freightways, 97 A.D.2d 982, 468 N.Y.S.2d 779, 1983 N.Y. App. Div. LEXIS 20840 (N.Y. Ct. App. 1983).

Pincite

Opinion

Order unanimously reversed, without costs, motion granted and complaint dismissed and motion to strike matter from respondent’s brief denied as academic. Memorandum: Special Term abused its discretion in not unconditionally granting defendant’s motion to dismiss plaintiff’s complaint pursuant to CPLR 3216. The only document submitted in opposition to defendant’s motion to dismiss for failure to file a note of issue and statement of readiness within 90 days of demand was an affidavit by plaintiff’s counsel which did not set forth any evidentiary facts relating to the merits of plaintiff’s case. Consequently, it was insufficient to establish that plaintiff had a meritorious cause of action (Abrams, Kochman, Rathskeller v Esquire Motels, 79 [983]*983AD2d 879) and, hence, the complaint should have been dismissed (CPLR 3216, subd [e]; see, e.g., Berna v Monroe Community Coll., 91 AD2d 1199; Nelson v Eastman Dental Center, 85 AD2d 887; Brothers v Wall, 84 AD2d 923). (Appeal from order of Supreme Court, Erie County, Mintz, J. — motion to dismiss.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Moule, JJ.

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Order unanimously reversed, without costs, motion granted and complaint dismissed and motion to strike matter from respondent’s brief denied as academic. Memorandum: Special Term abused its discretion in not unconditionally granting defendant’s motion to dismiss plaintiff’s complaint pursuant to CPLR 3216. The only document submitted in opposition to defendant’s motion to dismiss for failure to file a note of issue and statement of readiness within 90 days of demand was an affidavit by plaintiff’s counsel which did not set forth any evidentiary facts relating to the merits of plaintiff’s case. Consequently, it was insufficient to establish that plaintiff had a meritorious cause of action (Abrams, Kochman, Rathskeller v Esquire Motels, 79 [983]*983AD2d 879) and, hence, the complaint should have been dismissed (CPLR 3216, subd [e]; see, e.g., Berna v Monroe Community Coll., 91 AD2d 1199; Nelson v Eastman Dental Center, 85 AD2d 887; Brothers v Wall, 84 AD2d 923). (Appeal from order of Supreme Court, Erie County, Mintz, J. — motion to dismiss.) Present — Hancock, Jr., J. P., Callahan, Denman, Boomer and Moule, JJ.

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Bluebook (online)

97 A.D.2d 982, 468 N.Y.S.2d 779, 1983 N.Y. App. Div. LEXIS 20840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/len-v-consolidated-freightways-nyappdiv-1983.

Opinion

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