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ROSENBERG v. RAE

28 N.Y.2d 650 (1971)

Louis L. Rosenberg, Appellant, v. Joseph Rae, Respondent and Third-Party Plaintiff-Respondent, et al., Defendants. Theodore Blatt, Third-Party Defendant.

Court of Appeals of the State of New York.

Decided February 18, 1971.

Attorney(s) appearing for the Case

John F. Anderson for appellant.

Noel W. Hauser for respondent.

Chief Judge FULD and Judges SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur; Judge BURKE taking no part.

MEMORANDUM.

We are in accord with the conclusions expressed in the dissenting opinion at the Appellate Division. Although the order of that court stated that the reversal was on the law and the facts, the explicit basis therefor was plaintiff's failure to serve the notice provided by CPLR 3216. Consequently, the Appellate Division did not pass upon the Special Term's exercise of discretion in denying defendant's motion to...

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