Santos v. Chappell

63 Misc. 2d 730, 313 N.Y.S.2d 320, 1970 N.Y. Misc. LEXIS 1408

Opinion

Bertram Harnett, J.

The complaint was served upon the defendants on May 11, 1970. By written stipulation, the time in which defendants were required to answer the complaint was extended to June 5, 1970, with no specific reference to time for motions. On June 5,1970, defendants moved pursuant to CPLR 3211 to dismiss the complaint.

A motion to dismiss a complaint pursuant to CPLR 3211 (subd. [a]), must be made: “ at any time before service of the responsive pleading is required ”. (CPLR 3211, subd. [e].) A stipulation which extends the time in which to answer a complaint also extends the time in which to move, unless a contrary intent is clearly stated. (See Siegel, Practice 'Commentary, McKinney’s Cons. Laws of N. Y., Book 7B, CPLR 3211, p. 58.) Such is not the case here, since the stipulation was entirely silent beyond the extension of time to answer. Accordingly, the court rules the motion to dismiss was timely made and this motion to strike is denied.

The court notes in closing that a lawsuit is not a game and technicality should not be invoked to exclude .substantive determination unless clearly required to avoid prejudice or undue hardship.