Pernise v. Di Giacomo

Appellate Division of the Supreme Court of New York

Pernise v. Di Giacomo

25 A.D.2d 447, 268 N.Y.S.2d 921, 1966 N.Y. App. Div. LEXIS 5106

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

DecidedJanuary 24, 1966

StatusPublished

This text of 25 A.D.2d 447 (Pernise v. Di Giacomo) 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

Pernise v. Di Giacomo, 25 A.D.2d 447, 268 N.Y.S.2d 921, 1966 N.Y. App. Div. LEXIS 5106 (N.Y. Ct. App. 1966).

Pincite

Opinion

In a negligence action to recover damages for personal injury, the defendant appeals from an order of the Supreme Court, Kings County, entered July 15, 1965, which denied his motion to dismiss the complaint for lack of prosecution on condition that the action be placed on the calendar within a specified time. Order reversed, without costs; motion granted unconditionally and complaint dismissed, without costs. Pursuant to CPLR 3216 as amended, defendant duly served upon plaintiff’s attorney a written demand that within 45 days plaintiff serve and file a note of issue. Plaintiff failed to comply with such demand. In our opinion, the inadequacy of the excuses offered for the delay, combined with the failure to submit an affidavit of merits, entitled the defendant to an unconditional dismissal of the complaint (Passalacqua v. County Estates, 24 A D 2d 497; Bisnoff v. Bergman, 24 A D 2d 557).

Brennan, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.

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In a negligence action to recover damages for personal injury, the defendant appeals from an order of the Supreme Court, Kings County, entered July 15, 1965, which denied his motion to dismiss the complaint for lack of prosecution on condition that the action be placed on the calendar within a specified time. Order reversed, without costs; motion granted unconditionally and complaint dismissed, without costs. Pursuant to CPLR 3216 as amended, defendant duly served upon plaintiff’s attorney a written demand that within 45 days plaintiff serve and file a note of issue. Plaintiff failed to comply with such demand. In our opinion, the inadequacy of the excuses offered for the delay, combined with the failure to submit an affidavit of merits, entitled the defendant to an unconditional dismissal of the complaint (Passalacqua v. County Estates, 24 A D 2d 497; Bisnoff v. Bergman, 24 A D 2d 557).

Brennan, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.

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Bluebook (online)

25 A.D.2d 447, 268 N.Y.S.2d 921, 1966 N.Y. App. Div. LEXIS 5106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pernise-v-di-giacomo-nyappdiv-1966.