Wemple v. Cadoret

Appellate Division of the Supreme Court of New York

Wemple v. Cadoret

29 A.D.2d 1033, 289 N.Y.S.2d 443, 1968 N.Y. App. Div. LEXIS 4159

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

DecidedApril 29, 1968

StatusPublished

This text of 29 A.D.2d 1033 (Wemple v. Cadoret) 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

Wemple v. Cadoret, 29 A.D.2d 1033, 289 N.Y.S.2d 443, 1968 N.Y. App. Div. LEXIS 4159 (N.Y. Ct. App. 1968).

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Opinion

Memorandum by the Court. Appeal by the defendant from so much of an order of the Supreme Court at Special Term entered in Fulton County as granted the plaintiffs 30 days within which to serve a complaint and upon compliance excused the default of the plaintiffs in timely serving their complaint (CPLR 3012, subd. [b]). The record shows that more than a year had elapsed from the time when the plaintiffs were required to serve their complaint. The plaintiffs also failed to appear and/or submit a proposed complaint or any excuse for their default upon the return date of the motion. Under such circumstances, the motion should have been granted. Order modified, on the law and the facts, by striking so much of the second decretal paragraph as grants a 30-day extension of time to the plaintiffs and by directing that the action be dismissed for failure to serve a complaint, and, as so modified, affirmed, with $10 costs. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.

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Memorandum by the Court. Appeal by the defendant from so much of an order of the Supreme Court at Special Term entered in Fulton County as granted the plaintiffs 30 days within which to serve a complaint and upon compliance excused the default of the plaintiffs in timely serving their complaint (CPLR 3012, subd. [b]). The record shows that more than a year had elapsed from the time when the plaintiffs were required to serve their complaint. The plaintiffs also failed to appear and/or submit a proposed complaint or any excuse for their default upon the return date of the motion. Under such circumstances, the motion should have been granted. Order modified, on the law and the facts, by striking so much of the second decretal paragraph as grants a 30-day extension of time to the plaintiffs and by directing that the action be dismissed for failure to serve a complaint, and, as so modified, affirmed, with $10 costs. Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.

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Bluebook (online)

29 A.D.2d 1033, 289 N.Y.S.2d 443, 1968 N.Y. App. Div. LEXIS 4159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wemple-v-cadoret-nyappdiv-1968.