Santos v. Chappell
| Citation | 63 Misc.2d 730,313 N.Y.S.2d 320 |
| Parties | Edward SANTOS and Theodore Meyerfeld, individually, and as Members of the Long Island Board of Relators, Inc., and on behalf of the Long Island Board of Relators, Inc., Plaintiffs, v. Harvey CHAPPELL, individually, and as Chairman of the Multiple Listing Committee of the L. I. Board of Relators, Inc., Nathan E. Bernstein, and Wilbur Lew, individually and as Vice Chairman of the Multiple Listing Committee, and Joseph F. Geragty, individually, and as Executive Vice President of the L. I. Board of Realtors, Inc., Defendants. |
| Decision Date | 03 August 1970 |
| Court | United States State Supreme Court (New York) |
Mark K. Leeds, Laurelton, for plaintiffs.
Theodore D. Hoffman, Mineola, for defendants Chappell, Bernstein & Lew.
Roper & Neary, Bellerose, for defendant Geraghty & L. I. Board of Relators, Inc.
The complaint was served upon the defendants on May 11, 1970. By written stipulation, the time in which defendants were required to answer the complaint was extended to June 5, 1970, with no specific reference to time for motions. On June 5, 1970, defendants moved pursuant to CPLR 3211 to dismiss the complaint.
A motion to dismiss a complaint pursuant to CPLR 3211(a), must be made:
'at any time before service of the responsive pleading is required * * *'. CPLR 3211(e)
A stipulation which extends the time in which to answer a complaint also extends the time in which to move, unless a contrary intent is clearly stated. See Siegal, Practice Commentary, McKinney's Consolidated Laws of N.Y., Book 7B, CPLR 3211, p. 58. Such is not the case here, since the stipulation was entirely silent beyond the extension of time to answer. Accordingly, the Court rules the motion to dismiss was timely made and this motion to strike is denied.
The Court notes in closing that a lawsuit is not a game and technicality should not be invoked to exclude substantive determination unless clearly required to avoid prejudice or undue hardship.
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Rich v. Lefkovits
... ... of any reference to moving against the complaint does not waive defendant's right to raise the jurisdictional defense by motion before answer (Santos v. Chappell, 63 Misc.2d 730, 313 N.Y.S.2d 320; Siegel, New York Practice, § 272, p 330), it clearly does not waive the right to move after joinder ... ...
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GE Bus. Fin. Servs. Inc. v. 166 W. 75<SUP>th</SUP> St., LLC., 2010 NY Slip Op 31259(U) (N.Y. Sup. Ct. 5/20/2010)
... ... which extends the time in which to answer a complaint also extends the time in which to move, unless a contrary intent is clearly stated." Santos v. Chappell, 63 Misc. 2d 730 (Sup. Ct. Nassau Co. 1970) (citing Seigel, Practice Commentary, McKinney's Cons. Law of N.Y., Book 7B, CPLR 3211) ... ...
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Tatar v. Port Authority Ny and Nj
... ... the time in which to move pursuant to CPLR 3211(c), unless a contrary intent is clearly stated (see, Rich v Lefkovits, 56 N.Y.2d 276, 279-280; Santos v Chappell, 63 Misc.2d 730) ... RITTER, J.P., FEUERSTEIN, O'BRIEN, H. MILLER and TOWNES, JJ., ... ...