Miskiewicz v. Hartley Restaurant Corp.
Decision Date | 23 February 1983 |
Citation | 58 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. |
Court | New York Court of Appeals Court of Appeals |
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.
Order reversed, etc.
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