Piaker v. Strong

Appellate Division of the Supreme Court of New York

Piaker v. Strong

40 A.D.2d 1057, 338 N.Y.S.2d 978, 1972 N.Y. App. Div. LEXIS 3046

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

DecidedDecember 21, 1972

StatusPublished

This text of 40 A.D.2d 1057 (Piaker v. Strong) 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

Piaker v. Strong, 40 A.D.2d 1057, 338 N.Y.S.2d 978, 1972 N.Y. App. Div. LEXIS 3046 (N.Y. Ct. App. 1972).

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Opinion

Appeal from so much of an order of the Supreme Court at Special Term, entered February 7, 1972 in Broome County, which denied plaintiffs’ motion, pursuant to CPLR 5015 (subd, [a]), to vacate a prior order dismissing their cause of action and for leave to serve a complaint. By prior order, the court dismissed the action pursuant to CPLR 3012 (subd. [b]) for failure to serve a complaint. No appeal was taken and the time to do so has expired. Appellants have now moved under CPLR 5015 (subd. [a]) to vacate the order on the grounds that there was an “ excusable default ”. The simple answer is that there was no default on the prior motion. The case was dismissed after appellants appeared and urged the court to excuse their failure to file a complaint. They may not relitigate that issue now by changing the statutory label on the motion papers and arguing that the failure to serve a complaint resulted in an order because of an excusable default, Order affirmed, without costs. Herlihy, P. J., Staley, Jr., Simons and Reynolds, JJ., concur; Greenblott, J., not taking part.

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Appeal from so much of an order of the Supreme Court at Special Term, entered February 7, 1972 in Broome County, which denied plaintiffs’ motion, pursuant to CPLR 5015 (subd, [a]), to vacate a prior order dismissing their cause of action and for leave to serve a complaint. By prior order, the court dismissed the action pursuant to CPLR 3012 (subd. [b]) for failure to serve a complaint. No appeal was taken and the time to do so has expired. Appellants have now moved under CPLR 5015 (subd. [a]) to vacate the order on the grounds that there was an “ excusable default ”. The simple answer is that there was no default on the prior motion. The case was dismissed after appellants appeared and urged the court to excuse their failure to file a complaint. They may not relitigate that issue now by changing the statutory label on the motion papers and arguing that the failure to serve a complaint resulted in an order because of an excusable default, Order affirmed, without costs. Herlihy, P. J., Staley, Jr., Simons and Reynolds, JJ., concur; Greenblott, J., not taking part.

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Bluebook (online)

40 A.D.2d 1057, 338 N.Y.S.2d 978, 1972 N.Y. App. Div. LEXIS 3046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/piaker-v-strong-nyappdiv-1972.