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Miskiewicz v. Hartley Restaurant Corp.

447 N.E.2d 71, 58 N.Y.2d 963, 460 N.Y.S.2d 523, 1983 N.Y. LEXIS 2904
CourtNew York Court of Appeals
DecidedFebruary 23, 1983
StatusPublished
Cited by18 cases

This text of 447 N.E.2d 71 (Miskiewicz v. Hartley Restaurant Corp.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miskiewicz v. Hartley Restaurant Corp., 447 N.E.2d 71, 58 N.Y.2d 963, 460 N.Y.S.2d 523, 1983 N.Y. LEXIS 2904 (N.Y. 1983).

Opinion

[965]*965OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, the case remitted to the Appellate Division, Second Department, for further proceedings with respect to the individual respondents, and the order of Supreme Court, Nassau County, insofar as it denied the motions to dismiss the complaint as to respondent Village of Valley Stream reinstated.

Defendants moved pursuant to CPLR 3216 to dismiss the action because of plaintiffs’ failure to file a note of issue. Special Term denied the motion. The Appellate Division, relying on Barasch v Micucci (49 NY2d 594) and noting that the excuse for the delay proffered by plaintiffs’ counsel was law office failure, reversed “on the law”. It erred in doing so and we therefore remit so that it may reconsider the matter and exercise its discretion.

Insofar as the Appellate Division granted the motion of the defendant Village of Valley Stream to dismiss the action, its order is reversed, the order of Special Term reinstated and defendant village’s motion to dismiss denied. It appears from the record before us that defendant village’s notice of appeal to the Appellate Division was not timely and therefore that court was without jurisdiction.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur in memorandum.

Order reversed, etc.

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447 N.E.2d 71, 58 N.Y.2d 963, 460 N.Y.S.2d 523, 1983 N.Y. LEXIS 2904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miskiewicz-v-hartley-restaurant-corp-ny-1983.