Murray v. Hendrickson

Appellate Division of the Supreme Court of New York

Murray v. Hendrickson

16 A.D.3d 1058, 792 N.Y.S.2d 754, 2005 N.Y. App. Div. LEXIS 2802

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

DecidedMarch 18, 2005

StatusPublished

Cited by3 cases

This text of 16 A.D.3d 1058 (Murray v. Hendrickson) 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

Murray v. Hendrickson, 16 A.D.3d 1058, 792 N.Y.S.2d 754, 2005 N.Y. App. Div. LEXIS 2802 (N.Y. Ct. App. 2005).

Pincite

Opinion

Appeal from an order of the Supreme Court, Livingston County (Ronald A. Cicoria, A.J.), entered November 17, 2003. The order granted plaintiffs motion for summary judgment in an action for breach of contract.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is dismissed.

Memorandum: Plaintiff commenced this action to recover damages for breach of contract, alleging that defendant failed to meet his child support obligations as set forth in a separation agreement signed by the parties in December 1990. Rather than purchasing a new index number when commencing the instant action, plaintiff filed the action under the index number assigned to the 1992 divorce action. When commencing a new action, however, “the failure to pay the filing fee and secure a new index number is a nonwaivable defect” (Chiacchia & Fleming v Guerra, 309 AD2d 1213, 1214 [2003], lv denied 2 NY3d 704 [2004]), and therefore, the instant action was not properly commenced. Despite defendant’s failure to move for dismissal, the action is a nullity and the complaint must be dismissed (see Sangiacomo v County of Albany, 302 AD2d 769, 770-771 [2003]). Present — Scudder, J.P., Kehoe, Smith, Pine and Hayes, JJ.

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Appeal from an order of the Supreme Court, Livingston County (Ronald A. Cicoria, A.J.), entered November 17, 2003. The order granted plaintiffs motion for summary judgment in an action for breach of contract.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is dismissed.

Memorandum: Plaintiff commenced this action to recover damages for breach of contract, alleging that defendant failed to meet his child support obligations as set forth in a separation agreement signed by the parties in December 1990. Rather than purchasing a new index number when commencing the instant action, plaintiff filed the action under the index number assigned to the 1992 divorce action. When commencing a new action, however, “the failure to pay the filing fee and secure a new index number is a nonwaivable defect” (Chiacchia & Fleming v Guerra, 309 AD2d 1213, 1214 [2003], lv denied 2 NY3d 704 [2004]), and therefore, the instant action was not properly commenced. Despite defendant’s failure to move for dismissal, the action is a nullity and the complaint must be dismissed (see Sangiacomo v County of Albany, 302 AD2d 769, 770-771 [2003]). Present — Scudder, J.P., Kehoe, Smith, Pine and Hayes, JJ.

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Bluebook (online)

16 A.D.3d 1058, 792 N.Y.S.2d 754, 2005 N.Y. App. Div. LEXIS 2802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murray-v-hendrickson-nyappdiv-2005.

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