Salama v. Cohen
| Decision Date | 01 December 1965 |
| Citation | 16 N.Y.2d 1058,266 N.Y.S.2d 131 |
| Parties | , 213 N.E.2d 461 Edmund SALAMA, Appellant, v. Victor COHEN, Respondent. Angela TOMICH et al., Appellants, v. Victor COHEN, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 23 A.D.2d 482, 255 N.Y.S.2d 509.
Passengers in automobile and driver brought actions against the owner of the automobile for injuries sustained when the automobile struck a toll booth stanchion, on ground that the brakes of the automobile were defective.
The summons and complaint in both actions were served on November 15, 1961, and the answer was served on January 11, 1962, and notice of motion to dismiss for failure to prosecute was served on May 29, 1964, and on September 4, 1964 the Supreme Court, Special Term, New York County, Mitchell D. Schweitzer, J., entered an order denying the motion, and the owner of the automobile appealed.
The Appellate Division entered an order in each of the actions reversing, on the law, on the facts, and in the exercise of discretion, the order of the Special Term and granted the motion to dismiss for failure to prosecute, and held that where motion to dismiss was made on the ground of general delay and was not based on failure of passengers and driver to secure and file note of issue, CPLR 3216 dealing with dismissal for want of prosecution did not apply.
The passengers and the driver appealed to the Court of Appeals.
Rinzler, Schneer & Wiener, New York City, for plaintiff-appellant.
Emile Z. Berman and A. Harold Frost, New York City (Harold L. Schwab, New York City, of counsel), for defendant-respondent.
In each of the above-entitled actions: Order of Appellate Division reversed and that of Special Term reinstated, with costs in this court and in the Appellate Division. A motion to dismiss under CPLR 3216 cannot be granted prior to the filing of a note of issue unless defendant has first served a written demand on the plaintiff to serve and file the note of issue within 45 days in accordance with the terms of the statute. (Cf. Fischer v. Pan Amer. World Airways, 16 N.Y.2d 725, 262 N.Y.S.2d 108, 209 N.E.2d 725.)
All concur.
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Cohn v. Borchard Affiliations
...(see Message of the Governor, 1965 Legis.Ann., p. 551), the same result was accomplished by the decision in Salama v. Cohen, 16 N.Y.2d 1058, 266 N.Y.S.2d 131, 213 N.E.2d 461. We held in that case that, even under the rule as it then read, 'a motion to dismiss under CPLR 3216, cannot be gran......
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Kasiuba v. New York Times Co.
...rule that everyone is presumed to know the law. The fact that the defendant mistakenly relied on the case of Salama v. Cohen, 16 N.Y.2d 1058, 266 N.Y.S.2d 131, 213 N.E.2d 461, in withdrawing its earlier motion to dismiss is therefore no aid to it, particularly in view of the fact that the C......
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Thomas v. Melbert Foods, Inc.
...to prosecute, would hardly encourage their diligent prosecution of actions. The facts in Salama v. Cohen and Tomich v. Cohen, 16 N.Y.2d 1058, 266 N.Y.S.2d 131, 213 N.E.2d 461, were quite similar to the facts in the instant case. In Salama and Tomich we reversed the Appellate Division's dism......
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Chase v. Scavuzzo
...of issue had been served (Fischer v. Pan Am. World Airways, 16 N.Y.2d 725, 262 N.Y.S.2d 108, 209 N.E.2d 725; Salama v. Cohen, 16 N.Y.2d 1058, 266 N.Y.S.2d 131, 213 N.E.2d 461). However, less than a year later, we distinguished between the authority of courts to dismiss an action for general......