Lucenti v. City of Buffalo

Order unanimously affirmed, without costs. Memorandum: This action was commenced 'by the service of a summons on September 22, 1964. Defendant appeared on September 25, 1964 and demanded service of the complaint. Plaintiff defaulted in pleading by failure to serve the complaint within 20 days thereafter and defendant thereupon became entitled to an order dismissing plaintiff’s action. (CPLR 3012.) On February 8, 1967 defendant moved for such an order. Its motion papers stated facts sufficient to obtain relief under CPLR 3012 but its notice of motion asked for dismissal pursuant to CPLR 3216.…