Balancio v. American Optical Corp.
| Decision Date | 24 October 1985 |
| Citation | 66 N.Y.2d 750,488 N.E.2d 106,497 N.Y.S.2d 360 |
| Parties | , 488 N.E.2d 106 Jeffrey R. BALANCIO, Appellant, v. AMERICAN OPTICAL CORPORATION, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
On review of submissions pursuant to section 500.4 of the Rules, order, 111 A.D.2d 202, 489 N.Y.S.2d 88, affirmed, with costs. We cannot say as a matter of law that the Appellate Division abused its discretion. Plaintiff also contends for the first time on appeal that the Court lacked subject matter jurisdiction because the demand to file a note of issue was not served by registered or certified mail as the rule requires. He does not dispute that he received actual timely notice of the demand. The failure to serve a CPLR 3216 demand by registered or certified mail is a procedural irregularity and, absent a showing of prejudice to a substantial right of a plaintiff, courts should not deny, as jurisdictionally defective, a defendant's motion to dismiss for neglect to prosecute (see, Beermont Corp. v. Yager, 34 A.D.2d 589, 308 N.Y.S.2d 109; see, also, Rumbrill v. Epting, 88 A.D.2d 1047, 1048, n. , 452 N.Y.S.2d 686; compare, Smith v. Troy, 77 A.D.2d 691, 429 N.Y.S.2d 796, affd. 54 N.Y.2d 890, 444 N.Y.S.2d 918, 429 N.E.2d 425 [] ).
TITONE, J., took no part.
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