65 A.D.2d 876 (1978)

Margaret L. Rascoe, Respondent, v. Paul M. Clark et al., Defendants, and Carmen P. Fasulo, Appellant

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 16, 1978

This action was commenced against defendant Fasulo by the service of a summons upon her on September 22, 1975. On December 9, 1975 defendant Fasulo served a notice of appearance and demand for a complaint upon plaintiff's attorney. Since no complaint was received for approximately 20 months, defendant Fasulo moved, pursuant to CPLR 3012 (subd [b]), to dismiss the action for failure to serve a complaint. Special Term conditionally dismissed the action unless plaintiff served a complaint on defendant Fasulo's attorneys within 10 days. On this appeal it is contended by defendant Fasulo that her motion should have been granted unconditionally. Although plaintiff alleges on appeal that her attorney appeared on the motion, the order being appealed from recites that no one appeared in opposition to defendant's motion. In any event, no papers were submitted in opposition. Plaintiff's failure to offer a satisfactory excuse for the lengthy delay and her failure to submit an affidavit of merits requires a modification of the order on appeal and the unconditional dismissal of the action as against defendant Fasulo (Hanley v Callanan Inds., 60 A.D.2d 706).

Order modified, on the law and the facts, by striking so much thereof as conditionally grants defendant Fasulo's motion to dismiss and by providing that the motion is granted unconditionally, and, as so modified, affirmed, without costs.


1000 Characters Remaining

Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases