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GILBERT v. BENNETT

174 Misc.2d 723 (1997)

665 N.Y.S.2d 837

James Gilbert, Plaintiff, v. Michael P. Bennett, Defendant.

Supreme Court, Monroe County.

October 31, 1997

Attorney(s) appearing for the Case

Fitzsimmons, DesMarteau, Beale & Nunn, Rochester (Mark S. Nunn of counsel), former attorneys for plaintiff. Nira T. Kermisch, Rochester, for plaintiff. Harris, Beach & Wilcox, Rochester (Edward P. Hourihan, Jr., of counsel), for defendant.

EDMUND A. CALVARUSO, J.

The issue before the court is whether a new attorney who has been hired, but not formally substituted as counsel, can file a note of issue to defeat a 90-day demand to prosecute under CPLR 3216. For the reasons cited below, this Bench holds it can.

This action involves a personal injuries claim resulting from a car crash. Plaintiff pleads defendant "negligently collided" with...

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