Moog, Inc. v. Town of Elma

Appellate Division of the Supreme Court of New York

Moog, Inc. v. Town of Elma

248 A.D.2d 953, 670 N.Y.S.2d 132, 1998 N.Y. App. Div. LEXIS 2983

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

DecidedMarch 13, 1998

StatusPublished

Cited by1 cases

This text of 248 A.D.2d 953 (Moog, Inc. v. Town of Elma) 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

Moog, Inc. v. Town of Elma, 248 A.D.2d 953, 670 N.Y.S.2d 132, 1998 N.Y. App. Div. LEXIS 2983 (N.Y. Ct. App. 1998).

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Opinion

—Order insofar as appealed from unanimously reversed on the law without costs, leave to recommence proceeding denied, motion granted and recommenced proceeding dismissed. Memorandum: In this tax certiorari proceeding, respondents appeal from an order that granted respondents’ motion to dismiss the original proceeding but granted petitioner leave to recommence the proceeding pursuant to CPLR former 306-b (b) and denied respondents’ motion to dismiss the recommenced proceeding. That part of the order dismissing the original proceeding “was superfluous” (Matter of Barsalow v City of Troy, 208 AD2d 1144, 1146). Because petitioner failed to file timely proof of service in accordance with CPLR former 306-b (a), the dismissal was automatic and self-executing. In addition, because the original proceeding was “deemed dismissed” by operation of statute {ibid.), Supreme Court erred in granting petitioner leave to recommence the proceeding {see, Bochen v Schieffelin & Somerset Co., 242 AD2d 408, Iv dismissed 91 NY2d 866; Long v Quinn, 234 AD2d 520, 521-522). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — RPTL.)

Present — Green, J. P., Hayes, Callahan, Balio and Fallon, JJ.

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—Order insofar as appealed from unanimously reversed on the law without costs, leave to recommence proceeding denied, motion granted and recommenced proceeding dismissed. Memorandum: In this tax certiorari proceeding, respondents appeal from an order that granted respondents’ motion to dismiss the original proceeding but granted petitioner leave to recommence the proceeding pursuant to CPLR former 306-b (b) and denied respondents’ motion to dismiss the recommenced proceeding. That part of the order dismissing the original proceeding “was superfluous” (Matter of Barsalow v City of Troy, 208 AD2d 1144, 1146). Because petitioner failed to file timely proof of service in accordance with CPLR former 306-b (a), the dismissal was automatic and self-executing. In addition, because the original proceeding was “deemed dismissed” by operation of statute {ibid.), Supreme Court erred in granting petitioner leave to recommence the proceeding {see, Bochen v Schieffelin & Somerset Co., 242 AD2d 408, Iv dismissed 91 NY2d 866; Long v Quinn, 234 AD2d 520, 521-522). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — RPTL.)

Present — Green, J. P., Hayes, Callahan, Balio and Fallon, JJ.

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Bluebook (online)

248 A.D.2d 953, 670 N.Y.S.2d 132, 1998 N.Y. App. Div. LEXIS 2983, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moog-inc-v-town-of-elma-nyappdiv-1998.

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