Gorton v. Nelson, 39 A.D.2d 799

Appeal from an order of the County Court of Schoharie County, entered April 23, 1971, which denied a motion for dismissal for failure to prosecute. This motor vehicle property damage action was commenced on March 11, 1968 with Robert Gorton as plaintiff. Issue was joined on July 24, 1968 and, about 14 months thereafter, defendant served a demand for a note of issue. On application of the original plaintiff an order was made in November, 1969 granting leave to amend the complaint and thereafter an amended complaint, with Donna L. Gorton substituted for the original plaintiff, was served. In December, 1970, a 45-day notice pursuant to CPLR 3216 was served on plaintiff’s attorney. A condition precedent to moving successfully under CPLR 3216 is that issue must have been joined in the action (CPLR 3216, subd. [b], par. [1]), which condition did not exist here since defendant did not serve an answer to the amended complaint as required by CPLR 3025 (subd. [d]). Order affirmed, with costs. Greenblott, J. P., Cooke, Simons, Kane and Reynolds, JJ., concur.

Case Details

Case Name: Gorton v. Nelson

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: May 18, 1972

Citations: 39 A.D.2d 799; 332 N.Y.S.2d 241; 1972 N.Y. App. Div. LEXIS 4574

Court Abbreviation: N.Y. App. Div.