Sanders v. Van Dome Management

Appellate Division of the Supreme Court of New York

Sanders v. Van Dome Management

191 A.D.2d 630, 595 N.Y.S.2d 113, 1993 N.Y. App. Div. LEXIS 2691

Appellate Division of the Supreme Court of the State of New York·Decided March 22, 1993·Published·Cited by 1 cases

Opinion

—In a negligence action to recover for damages to property, the defendant Van Dome Management appeals from an order of the Supreme Court, Kings County (Garry, J.), dated April 2, 1991, which granted its motion to dismiss the action pursuant to CPLR 3012 (b) [631]*631only on condition that the attorney for the plaintiffs serve the complaint on the defendant and pay $250 within 30 days "of the service of the order”.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion to dismiss the action is granted unconditionally.

The plaintiffs failed to set forth a reasonable excuse for their delay in serving a complaint pursuant to the defendant’s demand (see, CPLR 3012 [b]). Furthermore, the plaintiffs failed to address the merits of the case. It was thus error as a matter of law to grant the motion conditionally (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904; Stolowitz v Mount Sinai Hosp., 60 NY2d 685; Buono v Makita U.S.A., 175 AD2d 196). Mangano, P. J., Sullivan, O’Brien, Ritter and Pizzuto, JJ., concur.

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—In a negligence action to recover for damages to property, the defendant Van Dome Management appeals from an order of the Supreme Court, Kings County (Garry, J.), dated April 2, 1991, which granted its motion to dismiss the action pursuant to CPLR 3012 (b) [631]*631only on condition that the attorney for the plaintiffs serve the complaint on the defendant and pay $250 within 30 days "of the service of the order”.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion to dismiss the action is granted unconditionally.

The plaintiffs failed to set forth a reasonable excuse for their delay in serving a complaint pursuant to the defendant’s demand (see, CPLR 3012 [b]). Furthermore, the plaintiffs failed to address the merits of the case. It was thus error as a matter of law to grant the motion conditionally (see, Kel Mgt. Corp. v Rogers & Wells, 64 NY2d 904; Stolowitz v Mount Sinai Hosp., 60 NY2d 685; Buono v Makita U.S.A., 175 AD2d 196). Mangano, P. J., Sullivan, O’Brien, Ritter and Pizzuto, JJ., concur.

Sanders v. Van Dome Management, 191 A.D.2d 630, 595 N.Y.S.2d 113, 1993 N.Y. App. Div. LEXIS 2691 (N.Y. Ct. App. 1993).

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191 A.D.2d 630 (Sanders v. Van Dome Management) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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