Miskiewicz v. Hartley Restaurant Corp.

Decision Date23 February 1983
Citation58 N.Y.2d 963,447 N.E.2d 71,460 N.Y.S.2d 523
Parties, 447 N.E.2d 71 Michael MISKIEWICZ, as Father and Natural Guardian of Robert Miskiewicz, an Infant, et al., Appellants, v. HARTLEY RESTAURANT CORP. et al., Defendants, and Michael Grammas et al., Respondents.
CourtNew York Court of Appeals Court of Appeals
OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 88 A.D.2d 586, 449 N.Y.S.2d 790, should be reversed, with costs, the case remitted to the Appellate Division, Second Department, for further proceedings with respect to the individual respondents, and the order of Supreme Court, Nassau County, insofar as it denied the motions to dismiss the complaint as to respondent Village of Valley Stream reinstated.

Defendants moved pursuant to CPLR 3216 to dismiss the action because of plaintiffs' failure to file a note of issue. Special Term denied the motion. The Appellate Division, relying on Barasch v. Micucci (49 N.Y.2d 594, 427 N.Y.S.2d 732, 404 N.E.2d 1275) and noting that the excuse for the delay proffered by plaintiffs' counsel was law office failure, reversed "on the law". It erred in doing so and we therefore remit so that it may reconsider the matter and exercise its discretion.

Insofar as the Appellate Division granted the motion of the defendant Village of Valley Stream to dismiss the action, its order is reversed, the order of Special Term reinstated and defendant village's motion to dismiss denied. It appears from the record before us that defendant village's notice of appeal to the Appellate Division was not timely and therefore that court was without jurisdiction.

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

Order reversed, etc.

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17 cases
  • Chase v. Scalici
    • United States
    • New York Supreme Court — Appellate Division
    • November 7, 1983
    ...(CPLR 5514, subd. [c]; see Huht v. City of New York, 60 N.Y.2d 57, 467 N.Y.S.2d 187, 454 N.E.2d 527; Miskiewicz v. Hartley Rest. Corp., 58 N.Y.2d 963, 460 N.Y.S.2d 523, 447 N.E.2d 71; Pallone v. New York Tel. Co., 34 A.D.2d 1091, 312 N.Y.S.2d 672 [Appeal No. 2] ). Pennsylvania's statutory a......
  • Goussous v. Modern Food Market, Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • May 12, 1983
    ...also recently indicated that, other than in pleading defaults, it does not intend to apply Barasch. In Miskiewicz v. Hartley Rest. Corp., 58 N.Y.2d 963, 460 N.Y.S.2d 523, 447 N.E.2d 71, the court held that Barasch should not be applied to a failure to comply with the 90-day time limit of CP......
  • Public Service Mut. Ins. Co. v. Zucker
    • United States
    • New York Supreme Court — Appellate Division
    • March 5, 1996
    ... ... The D.L. Dineen Sales & Service Corp., Defendant ... Supreme Court, Appellate Division, ... First Department ... failure to file a note of issue pursuant to a CPLR 3216 motion (Miskiewicz v. Hartley Rest. Corp., 58 N.Y.2d 963, 460 N.Y.S.2d 523, 447 N.E.2d 71), ... ...
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    ... ... Defendants offer no excuse for this additional delay ... 2 Miskiewicz v. Hartley Restaurant Corp., 58 N.Y.2d 963, --- N.Y.S.2d ----, --- N.E.2d ... ...
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