[DOWNLOAD] "Abrams" by Supreme Court of New York # eBook PDF Kindle ePub Free

July 30, 2021

eBook details

Title: Abrams
Author : Supreme Court of New York
Release Date : January 23, 1980
Genre: Law,Books,Professional & Technical,
Pages : * pages
Size : 49 KB

Description

Order unanimously reversed, with costs, motion granted, and complaint dismissed. Memorandum: Defendants appeal from an order which denied their motion, pursuant to CPLR 3216, to dismiss plaintiffs complaint for want of prosecution. A written demand was served upon plaintiff to file a note of issue within 45 days or defendants would seek dismissal of the complaint for unreasonably neglecting to proceed. Plaintiff failed to respond or file a note of issue until 177 days later, after having been served with this motion to dismiss. Plaintiffs only excuse for the failure timely to comply was the assertion in an attorneys affidavit that the demand had been misfiled. Plaintiffs affidavit of merit executed by its attorney alleges merely that the attorney is familiar with the facts of the case founded upon examination of a written instrument and believes plaintiff to have a meritorious cause of action. There is no justification stated for the protracted delay of 177 days in filing the note of issue. Orderly procedure mandates timely compliance with the notice pursuant to CPLR 3216. Where it appears that valid reasons may exist for a partys inability to comply before default occurs, application should be made to the court for an extension of time (Nappi v St. Johns Cemetery, 73 A.D.2d 687; CPLR 2004). No such application was made herein. An attorneys affidavit asserting "law office failure" is insufficient to excuse such inordinate delay (Barasch v Micucci, 49 N.Y.2d 594, 599). Furthermore, an attorneys affidavit not containing evidentiary facts and not attested to by an individual with personal knowledge of the facts is insufficient to establish prima facie that plaintiff has a good cause of action (Barasch v Micucci, supra). In the absence of a showing of merit and reasonable excuse for the delay, it was an abuse of discretion for Special Term to deny the motion. A court is authorized to dismiss a complaint when it finds that a party has unreasonably neglected to prosecute (Jones v Maphey, 50 N.Y.2d 971; CPLR 3216, subd [a]). (Appel from order of Oneida Supreme Court -- dismiss complaint.) Present -- Hancock, Jr., J.P., Schnepp, Callahan, Doerr and Witmer, JJ.