Brady v. Reynolds Printasign Co.

• Decision Date: 05 July 1983
• Citation: 453 N.E.2d 1076,59 N.Y.2d 979,466 N.Y.S.2d 659
• Parties: , 453 N.E.2d 1076 Frances BRADY, as Administratrix of the Estate of Robert Brady, Deceased, Appellant, v. REYNOLDS PRINTASIGN COMPANY et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 659

466 N.Y.S.2d 659

59 N.Y.2d 979, 453 N.E.2d 1076

Frances BRADY, as Administratrix of the Estate of Robert

Brady, Deceased, Appellant, v. REYNOLDS PRINTASIGN COMPANY et al., Respondents.

Court of Appeals of New York.

July 5, 1983.

[59 N.Y.2d 980] Remo J. Acito and Elinore B. Klein, New York City, for appellant.

Robert H. Fischer, New York City, for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 92 A.D.2d 780, 459 N.Y.S.2d 619, should be reversed, with costs, and the case remitted to the Appellate Division so that it may reconsider the matter and may exercise its own discretion.

The Appellate Division erred in holding, as a matter of law because the only excuse tendered by plaintiff constituted law office failure, that Special Term had abused its discretion in granting plaintiff's motion to vacate defendants' 90-day demand (CPLR 3216) and denying defendants' motion to dismiss the complaint for plaintiff's failure to serve a note of issue in response to that demand (Miskiewicz v. Hartley Rest. Corp., 58 N.Y.2d 963, 460 N.Y.S.2d 523, 447 N.E.2d 71).

COOKE, C.J., and JASEN, JONES, WACHTLER, MEYER and SIMONS, JJ., concur.

On review of submissions pursuant to rule 500.2(b) of the Rules of the Court of Appeals (22 NYCRR 500.2[g] ), order reversed, with costs, and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.