Johnson v. Sam Minskoff & Sons, Inc.
Appellate Division of the Supreme Court of the State of New York
1Opinion of the Court
OPINION OF THE COURT
Ellerin, J.
This appeal from the dismissal of a complaint pursuant to both CPLR 3404 and CPLR 3216 presents us with the occasion to consider the overlap between the two rules and to hold, in accord with the Appellate Division, Second Department (see, Lopez v Imperial Delivery Serv., 282 AD2d 190 [Feuerstein, J.], lv dismissed 96 NY2d 937), that CPLR 3404 should not be applied to cases in which a note of issue has not been filed. For the reasons that follow, neither CPLR 3404 nor CPLR 3216 provided a proper basis for the dismissal of the complaint in this case.
Plaintiffs…
2Cases cited7 opinions
- Lopez v. Imperial Delivery Service, Inc.Appellate Division of the Supreme Court of the State of New York · 2001
- Chase v. ScavuzzoNew York Court of Appeals · 1995
- Cohn v. Borchard AffiliationsNew York Court of Appeals · 1969
- Balancio v. American Optical Corp.New York Court of Appeals · 1985
- State v. KamaAppellate Division of the Supreme Court of the State of New York · 1999
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