Viscosi v. Merritt

Appellate Division of the Supreme Court of New York

Viscosi v. Merritt

125 A.D.2d 814, 510 N.Y.S.2d 30, 1986 N.Y. App. Div. LEXIS 63021

Appellate Division of the Supreme Court of the State of New York·Decided December 18, 1986·Published·Cited by 7 cases

Opinion

— Mahoney, P. J.

Appeal from an order of the Supreme Court at Special Term (Plumadore, J.), entered February 10, 1986 in Fulton County, which denied defendant’s motion to dismiss the complaint.

The parties were apparently involved in an automobile accident on July 12, 1982. On July 12, 1985, plaintiff sought to commence an action against defendant by service of a summons with notice. Defendant moved to dismiss on the ground that the notice was not sufficient. Special Term denied the motion and this appeal ensued.

CPLR 305 (b) provides: "If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and * * * the sum of money for which judgment may be taken in case of default.” It has been held that the language of this statute is imperative (see, Parker v Mack, 61 NY2d 114, 117). However, since the purpose of the notice is simply to provide the defendant with " 'at least basic information concerning the nature of plaintiffs claim and the relief sought’ ” (id., quoting Twenty-third Ann Report of NY Judicial Conference, at 273 [1978]), absolute precision is not necessary (see, Premo v Cornell, 71 AD2d 223). Here, the notice stated, "The nature of this action is Automobile negligence * * *. The relief sought is $100,000.00.” Based on the circumstances herein, this description of the action is sufficient.

Order affirmed, with costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.

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— Mahoney, P. J.

Appeal from an order of the Supreme Court at Special Term (Plumadore, J.), entered February 10, 1986 in Fulton County, which denied defendant’s motion to dismiss the complaint.

The parties were apparently involved in an automobile accident on July 12, 1982. On July 12, 1985, plaintiff sought to commence an action against defendant by service of a summons with notice. Defendant moved to dismiss on the ground that the notice was not sufficient. Special Term denied the motion and this appeal ensued.

CPLR 305 (b) provides: "If the complaint is not served with the summons, the summons shall contain or have attached thereto a notice stating the nature of the action and the relief sought, and * * * the sum of money for which judgment may be taken in case of default.” It has been held that the language of this statute is imperative (see, Parker v Mack, 61 NY2d 114, 117). However, since the purpose of the notice is simply to provide the defendant with " 'at least basic information concerning the nature of plaintiffs claim and the relief sought’ ” (id., quoting Twenty-third Ann Report of NY Judicial Conference, at 273 [1978]), absolute precision is not necessary (see, Premo v Cornell, 71 AD2d 223). Here, the notice stated, "The nature of this action is Automobile negligence * * *. The relief sought is $100,000.00.” Based on the circumstances herein, this description of the action is sufficient.

Order affirmed, with costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.

Viscosi v. Merritt, 125 A.D.2d 814, 510 N.Y.S.2d 30, 1986 N.Y. App. Div. LEXIS 63021 (N.Y. Ct. App. 1986).

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