McCabe v. 148-57 Equities Co.

Appellate Division of the Supreme Court of New York

McCabe v. 148-57 Equities Co.

305 A.D.2d 231, 758 N.Y.S.2d 494, 2003 N.Y. App. Div. LEXIS 5536

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

DecidedMay 15, 2003

StatusPublished

Cited by2 cases

This text of 305 A.D.2d 231 (McCabe v. 148-57 Equities Co.) 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

McCabe v. 148-57 Equities Co., 305 A.D.2d 231, 758 N.Y.S.2d 494, 2003 N.Y. App. Div. LEXIS 5536 (N.Y. Ct. App. 2003).

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Opinion

Appeal from order, Supreme Court, New York County (Diane Lebedeff, J.), entered October 25, 2001, which, in an action by a laborer for personal injuries, inter alia, granted defendant’s cross motion to dismiss the [232]*232complaint for failure to properly serve process, unanimously dismissed, without costs, as abandoned. Order, same court and Justice, entered May 14, 2002, which denied plaintiffs motion to deem defendant’s previously granted cross motion abandoned and to dismiss defendant’s affirmative defense of lack of jurisdiction as waived, unanimously affirmed, without costs.

In the first order on appeal, the motion court granted defendant’s cross motion to dismiss the complaint for failure to mail a copy of the complaint, as required by CPLR 308 (2) and 308 (4), within the statute of limitations. However, since the motion court was simultaneously granting plaintiffs attorney permission to withdraw, it made the dismissal without prejudice to a motion by new counsel for an extension of time to make service. The order also directed the Clerk to enter a judgment dismissing the complaint “no sooner than 5 days after service of a copy of this order with notice of entry and the proposed judgment to plaintiff.” We dismiss the appeal from that order as abandoned, since plaintiffs brief does not argue that service of process was proper, or otherwise address the dismissal of the complaint for failure to complete service. In the second order on appeal, plaintiffs subsequent motion to deem defendant’s prior cross motion to dismiss abandoned, due to its failure to serve notice of entry of the first order or a proposed judgment within 60 days, was properly denied on the ground that the first order did not direct submission of any paper to the court for its signature (22 NYCRR 202.48; see Helfant v Sobkowski, 174 AD2d 340 [1991]; Donovan v DiPietro, 195 AD2d 589 [1993]). Concur — Andrias, J.P., Williams, Lerner, Friedman and Marlow, JJ.

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Appeal from order, Supreme Court, New York County (Diane Lebedeff, J.), entered October 25, 2001, which, in an action by a laborer for personal injuries, inter alia, granted defendant’s cross motion to dismiss the [232]*232complaint for failure to properly serve process, unanimously dismissed, without costs, as abandoned. Order, same court and Justice, entered May 14, 2002, which denied plaintiffs motion to deem defendant’s previously granted cross motion abandoned and to dismiss defendant’s affirmative defense of lack of jurisdiction as waived, unanimously affirmed, without costs.

In the first order on appeal, the motion court granted defendant’s cross motion to dismiss the complaint for failure to mail a copy of the complaint, as required by CPLR 308 (2) and 308 (4), within the statute of limitations. However, since the motion court was simultaneously granting plaintiffs attorney permission to withdraw, it made the dismissal without prejudice to a motion by new counsel for an extension of time to make service. The order also directed the Clerk to enter a judgment dismissing the complaint “no sooner than 5 days after service of a copy of this order with notice of entry and the proposed judgment to plaintiff.” We dismiss the appeal from that order as abandoned, since plaintiffs brief does not argue that service of process was proper, or otherwise address the dismissal of the complaint for failure to complete service. In the second order on appeal, plaintiffs subsequent motion to deem defendant’s prior cross motion to dismiss abandoned, due to its failure to serve notice of entry of the first order or a proposed judgment within 60 days, was properly denied on the ground that the first order did not direct submission of any paper to the court for its signature (22 NYCRR 202.48; see Helfant v Sobkowski, 174 AD2d 340 [1991]; Donovan v DiPietro, 195 AD2d 589 [1993]). Concur — Andrias, J.P., Williams, Lerner, Friedman and Marlow, JJ.

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Bluebook (online)

305 A.D.2d 231, 758 N.Y.S.2d 494, 2003 N.Y. App. Div. LEXIS 5536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccabe-v-148-57-equities-co-nyappdiv-2003.

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