Marks v. Levine

Appellate Division of the Supreme Court of New York

Marks v. Levine

45 A.D.2d 715, 355 N.Y.S.2d 810, 1974 N.Y. App. Div. LEXIS 4837

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

DecidedJune 3, 1974

StatusPublished

Cited by2 cases

This text of 45 A.D.2d 715 (Marks v. Levine) 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

Marks v. Levine, 45 A.D.2d 715, 355 N.Y.S.2d 810, 1974 N.Y. App. Div. LEXIS 4837 (N.Y. Ct. App. 1974).

Pincite

Opinion

Appeal by defendant from so much of an order of the Supreme Court, Nassau County, dated January 15, 1974, as, in granting defendant’s motion to dismiss the action for failure to serve a complaint, pursuant to CPLR 3012 (subd. [b]) included the following condition: "unless the plaintiff serve a Complaint within twenty (20) days after service of a copy of this Order on the attorney for the Plaintiff.” Order reversed insofar as appealed from, thus striking therefrom the above-quoted condition, with $20 costs and disbursements. In the absence of a proposed complaint, an excuse for the default by plaintiffs and an affidavit of merits, and without opposition to defendant’s motion, Special Term erred in the exercise of its sua sponte discretion (Harris v. Hampton Hotel Corp., 36 A D 2d 999; De Stefano v. Nash, 40 A D 2d 1010). Hopkins, Acting P. J., Christ, Brennan, Benjamin and Munder, JJ., concur

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Appeal by defendant from so much of an order of the Supreme Court, Nassau County, dated January 15, 1974, as, in granting defendant’s motion to dismiss the action for failure to serve a complaint, pursuant to CPLR 3012 (subd. [b]) included the following condition: "unless the plaintiff serve a Complaint within twenty (20) days after service of a copy of this Order on the attorney for the Plaintiff.” Order reversed insofar as appealed from, thus striking therefrom the above-quoted condition, with $20 costs and disbursements. In the absence of a proposed complaint, an excuse for the default by plaintiffs and an affidavit of merits, and without opposition to defendant’s motion, Special Term erred in the exercise of its sua sponte discretion (Harris v. Hampton Hotel Corp., 36 A D 2d 999; De Stefano v. Nash, 40 A D 2d 1010). Hopkins, Acting P. J., Christ, Brennan, Benjamin and Munder, JJ., concur

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Bluebook (online)

45 A.D.2d 715, 355 N.Y.S.2d 810, 1974 N.Y. App. Div. LEXIS 4837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marks-v-levine-nyappdiv-1974.

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