(Download) "Vincent J. Semprevivo v. James W. Wormuth" by Supreme Court of New York * Book PDF Kindle ePub Free
eBook details
- Title: Vincent J. Semprevivo v. James W. Wormuth
- Author : Supreme Court of New York
- Release Date : January 30, 1975
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 65 KB
Description
[49 A.D.2d 993 Page 993] This action for money damages for personal injuries allegedly sustained in an automobile accident on October 20, 1968 was commenced by service of a summons on October 18, 1971. Defendant served notice of appearance, and on April 7, 1972 brought a motion to dismiss for failure to serve a complaint. A conditional order of dismissal was issued, as a result of which plaintiff's complaint was served May 25, 1972. (The conditional order contained the notation that it was served on April 26, 1972, and by its terms required service of the complaint by May 16, 1972.) After service of an answer and demand for a bill of particulars on June 7, 1972, a motion to preclude was brought on resulting in the issuance of a further conditional order of dismissal, whereupon plaintiff's bill of particulars was served on February 13, 1973. There is some indication of settlement negotiations which apparently failed to progress after an offer was made on August 14, 1973 and not accepted within the period of 60 days which had been set forth in the offer. On November 26, 1973 defendant made demand that plaintiff file and serve a note of issue within 45 days. On November 6, 1974 the defendant brought on a motion to dismiss for failure to file and serve the note of issue within the 45-day period (CPLR 3216) and for unreasonably neglecting to proceed. The order denying said motion is the subject of the present appeal. The order must be reversed and the motion granted. Where it appears that a plaintiff has failed to serve a note of issue within 45 days in compliance with the proper demand therefor, and the motion is thereafter made to dismiss, There must be a showing of merit in evidentiary form * * *. Without it, the dismissal cannot be avoided (Stubblebine v Fratto, 37 A.D.2d 666, 667, app dsmd 29 N.Y.2d 954; see, also, Prezio v Milanese, 40 A.D.2d 910). The court at Special [49 A.D.2d 993 Page 994]
 "Vincent J. Semprevivo v. James W. Wormuth" by Supreme Court of New York * Book PDF Kindle ePub Free){kind=link}