Rosenberg v. Rae

New York Court of Appeals

Rosenberg v. Rae

269 N.E.2d 192, 28 N.Y.2d 650, 320 N.Y.S.2d 522, 1971 N.Y. LEXIS 1537

DecidedFebruary 18, 1971

StatusPublished

This text of 269 N.E.2d 192 (Rosenberg v. Rae) 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

Rosenberg v. Rae, 269 N.E.2d 192, 28 N.Y.2d 650, 320 N.Y.S.2d 522, 1971 N.Y. LEXIS 1537 (N.Y. 1971).

Pincite

Opinion

[652]*652Memorandum. We are in accord with the conclusions expressed in the dissenting opinion at the Appellate Division. Although the order of that court stated that the reversal was on the law and the facts, the explicit basis therefor was plaintiff’s failure to serve the notice provided by CPLR 3216. Consequently,' the Appellate Division did not pass upon the Special Term’s exercise of discretion in denying defendant’s motion to restore the ease to the calendar and remittal must be directed for that purpose (CPLR 5613).

The order appealed from should be reversed, without costs, and the case remitted to the Appellate Division for determination of the questions of fact raised in that court (CPLR 5613).. The question certified should be answered in the negative.

Chief Judge Fuld and Judges 'Scileppi, Bbrgan, Breitel, Jasen and Gibson concur; Judge Burke taking no part.

Order reversed, without costs, and case remitted to the Appellate Division for further proceedings in accordance with the memorandum herein. Question certified answered in the negative.

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[652]*652Memorandum. We are in accord with the conclusions expressed in the dissenting opinion at the Appellate Division. Although the order of that court stated that the reversal was on the law and the facts, the explicit basis therefor was plaintiff’s failure to serve the notice provided by CPLR 3216. Consequently,' the Appellate Division did not pass upon the Special Term’s exercise of discretion in denying defendant’s motion to restore the ease to the calendar and remittal must be directed for that purpose (CPLR 5613).

The order appealed from should be reversed, without costs, and the case remitted to the Appellate Division for determination of the questions of fact raised in that court (CPLR 5613).. The question certified should be answered in the negative.

Chief Judge Fuld and Judges 'Scileppi, Bbrgan, Breitel, Jasen and Gibson concur; Judge Burke taking no part.

Order reversed, without costs, and case remitted to the Appellate Division for further proceedings in accordance with the memorandum herein. Question certified answered in the negative.

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Bluebook (online)

269 N.E.2d 192, 28 N.Y.2d 650, 320 N.Y.S.2d 522, 1971 N.Y. LEXIS 1537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenberg-v-rae-ny-1971.