Shabot v. Quincy Mutual Fire Insurance

Appellate Division of the Supreme Court of New York

Shabot v. Quincy Mutual Fire Insurance

24 A.D.2d 972, 266 N.Y.S.2d 503, 1965 N.Y. App. Div. LEXIS 2712

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

DecidedDecember 21, 1965

StatusPublished

This text of 24 A.D.2d 972 (Shabot v. Quincy Mutual Fire Insurance) 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

Shabot v. Quincy Mutual Fire Insurance, 24 A.D.2d 972, 266 N.Y.S.2d 503, 1965 N.Y. App. Div. LEXIS 2712 (N.Y. Ct. App. 1965).

Pincite

Opinion

Order entered June 4, 1965, granting the defendants’ motion to dismiss the complaint pursuant to CPLR 3216 for unreasonable delay in the prosecution of the action, reversed on the law, without costs or disbursements to either party and the motion denied. This action was com[973]*973meneed December 9, 1958 and issue joined July 27, 1960. The action is on an insurance policy to recover damages due to a windstorm for losses allegedly suffered January, 1958. It is not denied that the case remained inactive for three years and three months. On December 23, 1964 the defendant served upon the plaintiff a 45-day notice pursuant to GPLR 3216 demanding that plaintiff serve and file a note of issue. The time for filing the note of issue was extended by stipulation through April 15, 1965. A bill of particulars was served by the plaintiff on March 25, 1965 and a note of issue and statement of readiness was served and filed on March 30, 1965. A compliance with the provisions of the 45-day rule of CPDR 3216 by placing the ease on the calendar in the requisite time would seem to preclude the dismissal of the action for failure to serve and .file a note of issue or for lack of prosecution (cf. Salama v. Cohen, 16 N Y 2d 1058; cf. Tomich v. Cohen, 16 N Y 2d 1058). Nor is an affidavit of merits required to be furnished by the plaintiff if there is otherwise compliance thereunder. (Fischer v. Pan American World Airways, 16 N Y 2d 725, revg. 22 A D 2d 642.) Moreover, since defendants by stipulation extended the time for the filing of the note of issue they may be deemed to have waived any defense arising out of the delay or failure to file. Concur — Botein, P. J., Breitel, Stevens, Eager and Steuer, JJ.

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Order entered June 4, 1965, granting the defendants’ motion to dismiss the complaint pursuant to CPLR 3216 for unreasonable delay in the prosecution of the action, reversed on the law, without costs or disbursements to either party and the motion denied. This action was com[973]*973meneed December 9, 1958 and issue joined July 27, 1960. The action is on an insurance policy to recover damages due to a windstorm for losses allegedly suffered January, 1958. It is not denied that the case remained inactive for three years and three months. On December 23, 1964 the defendant served upon the plaintiff a 45-day notice pursuant to GPLR 3216 demanding that plaintiff serve and file a note of issue. The time for filing the note of issue was extended by stipulation through April 15, 1965. A bill of particulars was served by the plaintiff on March 25, 1965 and a note of issue and statement of readiness was served and filed on March 30, 1965. A compliance with the provisions of the 45-day rule of CPDR 3216 by placing the ease on the calendar in the requisite time would seem to preclude the dismissal of the action for failure to serve and .file a note of issue or for lack of prosecution (cf. Salama v. Cohen, 16 N Y 2d 1058; cf. Tomich v. Cohen, 16 N Y 2d 1058). Nor is an affidavit of merits required to be furnished by the plaintiff if there is otherwise compliance thereunder. (Fischer v. Pan American World Airways, 16 N Y 2d 725, revg. 22 A D 2d 642.) Moreover, since defendants by stipulation extended the time for the filing of the note of issue they may be deemed to have waived any defense arising out of the delay or failure to file. Concur — Botein, P. J., Breitel, Stevens, Eager and Steuer, JJ.

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Bluebook (online)

24 A.D.2d 972, 266 N.Y.S.2d 503, 1965 N.Y. App. Div. LEXIS 2712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shabot-v-quincy-mutual-fire-insurance-nyappdiv-1965.