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Kull v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Dec 9, 1968
31 A.D.2d 638 (N.Y. App. Div. 1968)

Opinion

December 9, 1968


Appeal from an order of the Supreme Court, Queens County, dated January 2, 1968, which granted defendant's motion to dismiss plaintiffs' complaint on the ground of general delay in prosecution of the action. Order reversed, on the law, without costs, and motion denied, without costs. The findings of fact below are affirmed. We have held that CPLR 3216, as amended (L. 1967, ch. 770, eff. Sept. 1, 1967), shall be applied to all appeals reaching us after that effective date. Since a note of issue was served and filed prior to the service of the notice of motion, no dismissal could be had under CPLR 3216. Insofar as this holding is inconsistent with Cohn v. Borchard Affiliations ( 30 A.D.2d 74), we choose not to follow that case. It is our determination that the provisions of CPLR 3216 are constitutional (N.Y. Const., art. VI, § 30; Johnson v. Parrow, 56 Misc.2d 863). Brennan, Acting P.J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.


Summaries of

Kull v. City of New York

Appellate Division of the Supreme Court of New York, Second Department
Dec 9, 1968
31 A.D.2d 638 (N.Y. App. Div. 1968)
Case details for

Kull v. City of New York

Case Details

Full title:JEAN A. KULL et al., Appellants, v. CITY OF NEW YORK, Respondent

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 9, 1968

Citations

31 A.D.2d 638 (N.Y. App. Div. 1968)

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Meyer v. Teresi

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Cohn v. Borchard Affiliations

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